(2014) 384 KLW 977 

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE K.HARILAL 

MONDAY, THE 13TH DAY OF AUGUST 2012/22ND SRAVANA 1934 

RFA.No. 417 of 2010

OS.339/2004 of PRL.SUB COURT, IRINJALAKUDA 

APPELLANT / 3RD DEFENDANT

KOCHUPAILO

BY ADV. SRI.RENJITH THAMPAN 

RESPONDENTS/ PLAINTIFFS AND DEFENDANTS 1, 2 & 4-7

REENA AND 8 OTHERS.

7. KERALA STATE ELECTRICITY BOARD, SECRETARY, PATTAM, THIRUVANANTHAPURAM.

8. ASSISTANT EXECUTIVE ENGINEER, ELECTRI SUB DIVISION, MALA.

R1 TO 3 BY ADVS. SRI.V.G.RAMACHANDRAN SRI.V.BINOY RAM R5 BY ADVS. SRI.R.DIVAKARAN SRI.VINUCHAND R7 & 8 BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB

ORDER 

P.B. Suresh Kumar, J. 

This appeal instituted by the 3rd defendant in O.S. No.339 of 2004 of the Sub Court, Irinjalakkuda was disposed of along with RFA No.545 of 2007 filed by the second defendant in the said suit, as per judgment dated 13th August, 2012. The judgment indicates that the appeals were disposed of as closed, without any adjudication, in view of the settlement arrived at between the parties.

2. Earlier, this court permitted the appellant to institute the appeal as an indigent person as per order in CMCP No.65 of 2007 and consequently, the appellant did not pay the court fee payable on the appeal amounting to Rs.38,400/-. Now the Registry has placed this matter before us to consider whether any direction needs to be issued to recover the court fee from the appellant.

3. Rules 10, 11 and 11A of Order XXXIII of the Code of Civil Procedure 

(for short, 'the Code') which are relevant in the context of the clarification sought by the Registry read thus:- 

Rule 10 deals with the situation where the indigent person succeeds in the suit. Rule 11 deals with the situation where the indigent person fails. Rule 11A deals with the situation where the suit abates. Rule 10 is clear in its terms that where the plaintiff succeeds in the suit, the court shall calculate the amount of court fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person and recover the same from the party ordered by the decree to pay the court fee. Rule 11 provides that where the plaintiff fails in the suit or the permission granted to him to sue as an indigent person has been withdrawn, or where the suit is withdrawn or dismissed on account of the two contingencies mentioned in clauses (a) and (b) of that Rule, the court may order the plaintiff, to pay the court fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person. Rule 11A is also clear in its terms that where the suit abates by reason of the death of the plaintiff or any person added as a co-plaintiff, the Court shall order that the amount of court fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person shall be recoverable by the State Government from the estate of the deceased plaintiff. It is thus evident that in a case where the plaintiff who is permitted to institute the suit as an indigent person succeeds, the court is bound to order recovery of the court fee from the party ordered to pay the court fee. Likewise, in a case where the suit abates by reason of the death of the plaintiff, the court is bound to order recovery of the court fee from the estate of the deceased plaintiff. However, in a case where the plaintiff, who is permitted to sue as an indigent person fails, the court is conferred with a discretion to decide whether the plaintiff shall be mulcted with the liability to pay the court fee. In 

Joseph v. Kerala State Electricity Board (2012 (4) KLT 870)

this Court held that the last limb of Rule 11 confers on the court the discretion to consider and pass orders as to payment of court fee, having regard to the totality of the facts and circumstances of each case.

4. There is no provision in the Code conferring authority on the court to order payment/recovery of court fee in a case instituted by an indigent person, where the matter is settled out of court. The Code does not even confer any discretion on the court to order payment/recovery of the court fee in such cases, as in the cases where indigent persons fail in the suits. 

True, in view of the provision contained in Section 69 of the Kerala Court Fees and Suits Valuation Act, in cases where suits are settled out of court, or where suits are decided on the admission of the parties without any investigation, the plaintiffs are entitled to refund of one half of the court fee. Likewise, in view of the provision contained in Section 69A of the said Act, the plaintiffs are entitled to refund of the full court fee if the matter is settled by recourse to Section 89 of the Code. Merely for the reason that the plaintiff in a case where the matter is settled out of court is liable to pay one half of the court fee, the court cannot order recovery of the said part of the court fee, in the case of an indigent person. If that be the criterion, the Code would not have conferred any discretion to the court to order payment/recovery of court fee, having regard to the facts of the case, in a case where the suit is dismissed. As such, in the absence of any provision in the Code conferring authority on the court to order payment/recovery of court fee by the indigent person in a case where the suit is settled out of court, we are of the view that the court cannot order payment/recovery of court fee from persons who were permitted to institute the suits as indigent persons, if the suits are settled out of court. As such, no further order needs to be issued in this matter. The clarification sought by the registry is answered accordingly.