Kerala High Court: While deciding the petition, the bench of C.S. Dias, J., held that the judgment and decree, rendered after a full-fledged trial is appealable under Section 96 of Civil Procedure Code and without challenging the decree, application for refund of court fee is impermissible in law.
In the present case, the plaintiff filed the suit against the respondents for a decree for damages, which was dismissed by the court. Thereafter, the petitioner filed an application for return of plaint, plaint documents, court fee and legal benefit fund stamps, which was also rejected by the court. Thus, the petitioner filed this petition.
The counsel of the petitioner contended that although the court below had dismissed the suit on the finding that the suit is barred by law, the dismissal is rejection of the plaint under Order 7 Rule 11 of Civil Procedure Code (“the Code”). Hence, the petitioner is entitled to a refund of the court fee under Section 70 of the Kerala Courts Fees and Suits Valuation Act, 1959 (“the Act”).
The Court said that if the suit does not appear to be barred from the statement in the plaint, then the court must proceed to the next stage as laid down under the Code and adjudicate the suit after a full-fledged trial. In the case at hand, the Court below framed issues, proceeded with the trial and after completion of the trial it concluded that the suit was barred by law.
The Court placed reliance on Linsaraj v. State of Kerala, 2017 SCC OnLine Ker 23175 in which it was held that Section 70 of the Act comes into play only when there is no adjudicatory process.
The Court said that judgment was rendered after a full-fledged trial and a complete adjudicatory process. Thus, the judgment falls squarely under Section 33 of the Code and was followed by a decree. A decree passed under Section 33 of the Code is appealable under Section 96 of the Code.
The Court further said that without challenging the decree, the petitioner has filed an application with a seemingly innocuous prayer for the return of the plaint, the plaint documents, the court fee and legal benefit fund stamps. The said course is untenable and impermissible in law, mainly because the petitioner has consciously paid the balance court fee, participated in the trial and has suffered a decree.
Hence, the Court dismissed the petition.
[S. Surendran v. State of Kerala, 2023 SCC OnLine Ker 383, decided on 12-01-2023]
Advocates who appeared in this case :
Counsel for Petitioner: – Advocate M. Sasindran
Counsel for Respondent:- Advocate Salil Narayanan, Advocate V. Manu