SANKUNNI SOMADHAN Vs. VINODHINI AMMA

JUDGEMENT

(1.) But for the persuasive and forceful argument of the learned counsel Shri. Shaffique, who rendered able and valuable assistance to us in answering the question mooted before us, we would have declined to grant the relief of refund of Court fee prayed for in the C.M.P. repelling the contention canvassed before us by the learned counsel for the petitioner, which in our considered view is devoid of any force, the S.66 of the Kerala Court Fees and Suits Valuation Act, 1959 (for short 'the Act') which provides for refund of Court fee as it stands does not bar out the present case from the purview of that Section. At the same time, we appreciate the forthright and candid submission made by counsel for the petitioner while making a fervent plea for refund of Court fee paid that it was on the basis of the wrong legal advice given by her the Court fee of Rs. 10,706/- was paid by the petitioner, though we find no factual or legal basis for giving such a wrong advice. Needless to point out here that Court fee payable in an appeal under S.52 of the Act need be paid by a party who approaches the Court for restoration of the appeal rejected on the ground of delay in making payment of the deficit Court fee only on allowing the application by the Court to restore the appeal to file which was rejected. The skeletal facts require to be mentioned here for deciding affirmatively or otherwise the core issue ie., whether Court fee paid is to be given back or not are the rejection of the plea of the petitioner by the Subordinate Judge, Cherthala and passing of the judgment and decree in O. S. No. 515/98 directing him to pay arrears of rental at the rate of Rs. 1293/- per month from 1.11.1985 to 20.4.1989 and further directing him to pay rent at the rate of Rs. 1213/- per month from the date of the decree. Dissatisfied with that judgment and decree the petitioner preferred appeal before this Court paying one third Court fee payable in the appeal at the stage of admission as provided under S.52 of the Act and, as stated earlier that appeal happened to be rejected by this Court on the ground of non payment of the deficit Court fee within the time prescribed either under the Act or within the extended time granted by this Court for payment of the deficit Court fee.

(2.) An unsuccessful attempt was made by the petitioner to get restored the appeal to file by filing restoration application and at the time of filing the restoration application he also paid the Court fee payable in the appeal. It is for refund of the Court fee thus paid this petition has been filed.

(3.) It may be noted that it is not possible to spell out a case from the averments made in the petition that S.70 of the Act squarely applies to the facts of the case and as no factual foundation is laid to build a case asserting that S.70 of the Act is attracted we need not consider the question whether Court fee was paid by mistake or inadvertence. A conclusion can be legitimately arrived at that the petitioner's case does not fail within the purview of S.70 and the reason is that legitimate inference possible on the basis of materials on record is that the Court fee was paid by the petitioner in his anxiety or eagerness to get the appeal readmitted which happened to be rejected on the ground of non payment of deficit Court fee and his earnest endeavour which had not fructified was to impress upon the Court that there was no wilful laches on his part to pay the deficit Court fee. Such a case is adumbrated in the petition filed to restore the rejected appeal to file.