Martin K. M v. Prasannan and Prakashini – Regular First Appeal No. 713 of 2015 (B)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 7TH DAY OF JUNE 2017/17TH JYAISHTA, 1939** **RFA.No. 713 of 2015 (B) ------------------------** **AGAINST THE JUDGMENT AND DECREE IN OS 982/2011 of III ADDL.SUB COURT, ERNAKULAM DATED 06-01-2015** **APPELLANT/PLAINTIFF::** **-----------------------** **MARTIN.K.M, AGED 44 YEARS, S/O.MANUEL, KANASSERRY HOUSE, PALARIVATTOM KARA, EDAPPALLY THEKKE VILLAGE, KANAYANNOOR TALUK.** **BY ADVS.SRI.GEORGE SEBASTIAN SRI.EBY P.PAUL SRI.R.SYLESHWAREN NAIR** ## **RESPONDENTS/DEFENDANTS:** **-------------------------** ## **1. PRASANNAN** **S/O.KUMARAN, KURIKKOTTUPARAMBIL HOUSE, PALARIVATTOM KARA, EDAPPALLY THEKKE VILLAGE KANAYANNOOR TALUK. 682025** ## **2. PRAKASHINI** **W/O.PRASANNAN, KURIKKOTTUPARAMBIL HOUSE, PALARIVATTOM KARA, EDAPPALLY THEKKE VILLAGE KANAYANNOOR TALUK. 682025** **R1,2 BY ADV. SMT.MEREENA JOSEPH (CAVEATOR)** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 0706-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **kp** 'C.R.' ## V.CHITAMBARESH, K.ABRAHAM MATHEW & SATHISH NINAN, JJJ. ------------------------RFA.No.713 of 2015 ------------------------Dated this the 23[rd] day of March, 2017 ## O R D E R ## Chitambaresh, J. The Division Bench has doubted the correctness of Jamal v. Mohammedkutty [2003 (3) KLT 803] and hence the reference of the Regular First Appeal to the Full Bench. 2. The suit for specific performance of a contract was decreed in part by the court below granting the alternative relief of return of 90% of the amount paid as advance by the plaintiff to the defendants. The plaintiff has filed the Regular First Appeal contending that a decree for specific performance ought to have been passed and that there is no rationale in limiting the amount to 90% of the advance. The appellant had paid one-third of the fee payable in the appeal at the time of its preferment and should have paid the balance fee within 15 RFA.No.713/2015 2 days from the date of its admission. Such deferred payment of fee is permissible under Section 52 of the Kerala Court Fees and Suit Valuation Act, 1959 ['the Act' for short] and the relevant part is as follows:- 52. Appeals:- The fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject-matter of the appeal: Provided that, in levying fee on a memorandum of appeal against a final decree by a person whose appeal against the preliminary decree passed by the Court of first instance or by the Court of appeal is pending, credit shall be given for the fee paid by such person in the appeal against the preliminary decree: Provided further that one third of the fee payable in an appeal shall be paid at the stage of admission of first appeal or second appeal as the case may be and the balance shall be paid within such period, not later than fifteen days from the date of such admission as may be specified by the Court; in case the appeal is admitted: RFA.No.713/2015 3 Provided also that the Court may, for sufficient reasons to be recorded in writing extend the period upto thirty days.” 3. The Division Bench noticed that the appellant had not paid the balance fee payable in the appeal when it was listed on 22.3.2016 even though the same was admitted as early as on 12.11.2015. The appellant thereupon sought for rejection of the appeal for non payment of the balance fee and for refund of the one-third fee already paid relying on the dictum in Jamal's case (supra). It was held therein as ## follows:- This is not a case where the appeal is rejected on the ground that it was not presented within the time allowed by the law of Limitation. This is a case where the appeal has been preferred in time. Appellant is not in a position to pay the balance court fee and consequently pray for rejection of the appeal and refund of the court fee paid. We are of the view the claim made by the counsel squarely falls under Section 66 of RFA.No.713/2015 4 the Act, in the event of which, he is entitled to get refund of the entire court fee.” 4. The Division Bench however disagreed with the dictum laid down in Jamal's case (supra) on the entitlement of the refund of fee paid and passed the order of reference observing as follows:- “The question of payment of deficit fee arises only when the court fee is paid and deficiency in the amount remitted is noticed. A situation where one-third of court fee is paid as provided in Section 52 of the Act and non payment of the balance is not a situation akin to payment of deficit court fee and failure to make good the deficiency as provided in Section 66 of the Act. According to us, a situation where the appellant requests for rejection of appeal for non payment of balance court fee, is not covered by the provisions of Section 66 of the Act; Therefore, according to us, the judgment in Jamal's case (supra) requires reconsideration by a Full Bench.” 5. We heard Mr.George Sebastian, Advocate on behalf of the appellant and Mr.B.Jayasurya, Senior Government RFA.No.713/2015 5 ## Pleader on this issue at length. ## 6. Section 66 of the Act is as follows:- 66. Refund in cases of delay in presentation of plaint, etc.- (1) Where as plaint or memorandum of appeal is rejected on the ground of delay in its representation, or where the fee paid on a plaint or memorandum of appeal is deficient and the deficiency is not made good within the time allowed by law or granted by the Court, or the delay in payment of the deficit fee is not condoned and the plaint or memorandum of appeal is consequently rejected, the Court shall direct the refund to the plaintiff or the appellant, of the fee paid on the plaint or memorandum of appeal which has been rejected. (2) Where a memorandum of appeal is rejected on the ground that it was not presented within the time allowed by the law of limitation, one-half of the fee shall be refunded.” The fee paid on the memorandum of appeal is obviously 'deficient' since the appellant had not paid the balance twothird fee within 15 days from the date of its admission under RFA.No.713/2015 6 the second proviso to Section 52 of the Act. The 'deficiency' was not made good within the time allowed by law or the time (if any) granted by this court under the third proviso to Section 59 of the Act. There is no case for any one that the power to make up deficiency of court fees under Section 149 of the Code of Civil Procedure, 1908 was invoked by payment of the deficit fee noticed. 'Deficiency' can only mean inadequacy or shortcoming in the payment of fee under Section 52 of the Act in the instant case which situation is also governed by Section 66 of the Act. We notice that a learned single Judge has taken the same view in South India Wire Ropes Limited v. State of Kerala [2003 (2) KLT 668] which is seen referred to in Jamal's case (supra). 7. The Supreme Court in Diwan Bros. v. Central Bank of India and others [(1976) 3 SCC 800] approved the dictum in A.V.Fernandez' s case [AIR 1957 SC 657] and Mishri RFA.No.713/2015 7 Lal Tarachand Lodha's case [AIR 1964 SC 457]. It was held therein as follows:- “Even apart from these considerations, it is well settled that in case of a fiscal statute, the provisions must be strictly interpreted giving every benefit of doubt to the subject and lightening as far as possible the burden of court fees on the litigant. Thus where an adjudication given by a Tribunal could fall within two provisions of the Court Fees Act, one of which was onerous for the litigant and the other more liberal, the court would apply that provision which was beneficial to the litigant.” The provisions of the Act if construed strictly and in favour of the appellant would imply that non payment of the balance two-third fee in the appeal is also a situation covered by Section 66 of the Act. We have no hesitation to hold that the appellant is hence entitled to refund of the one-third fee paid in case the appeal is to be rejected for non payment of the deficit fee of two-third thereon. We affirm the ratio decidendi RFA.No.713/2015 8 in Jamal's case (supra) and leave it to the Division Bench to dispose of the Regular First Appeal in the light of the observations above. The Reference is answered accordingly. Sd/V.CHITAMBARESH, JUDGE Sd/- K.ABRAHAM MATHEW, JUDGE Sd/SATHISH NINAN, JUDGE nj/13.03.2017