Appellate Court Cannot Waive Payment Of Court Fee Before Trial Court On Account Of Settlement Of Appeal: Kerala High Court

The Kerala High Court recently decided that it is not legally permissible for an appellate court to waive payment of court fee before the trial court on account of settlement of appeal. Justice A. Badharudeen laid down the legal position in a common judgment while hearing two Regular First Appeals (RFAs).The appellants had initiated suits against the respondents before the Sub Court, Kochi and the same were decided on merits by the trial court. The trial court had also ordered for realisation of court fee in the common judgment passed by it. Aggrieved by the judgment, the appellants approached the High Court.Since the appellants had instituted the suits before the trial court as indigent persons, they were allowed to file the RFAs as indigent persons as well. The parties were referred to mediation at the appellate stage and mediation agreements were signed by the parties. As per clause 5 of the agreements of compromise, it was stated that 'both the parties have agreed to request this Honourable Court to modify the decree of the Sub Court, Kochi to set aside the realisation of court fee from the plaintiff'. The appellants, thus, prayed before the Court to waive payment of court fee before the trial court.The Single Judge referred to the judgments in Kochupailo v. Reena & Ors. and Santha & Ors. v. KSEB, TVM & Ors. In the former judgment, it was decided that court fee could not be recovered from persons, who were permitted to institute suits as indigent persons. In the latter judgment, payment of court fee at the appellate stage was waived but no waiver was allowed as to the court fee payable before the trial court.As per the Court, sections 69 and 69A of the Kerala Court Fees and Suit Valuation Act (KCF and SV Act) only permits refund of court fee when the suits and appeals are compromised or settled under Section 89 of the Code of Civil Procedure or when suits are decided on the admission of parties. There is no provision permitting the appellate court to waive off court fee payable before the trial court.It observed thus:“…But there is no provision either in the KCF and SV Act or elsewhere, permitting refund of court fee paid before the trial court by the plaintiff or the defendant as the case may be, and also to waive realistion of court fee payable before the trial court while suing as indigent persons after disposal of the case on merits after adjudication by the intervention of the appellate court. In view of the above, the request made as clause No.5 in the compromise cannot be accepted.”The Court, therefore, allowed the appeal in terms of all the clauses of the compromise agreement except for the Clause 5. It was also held that the court fee payable in the appeal need not be realised but the trial court can realise the court fee payable before it.Case Nos: RFA No. 531 of 2009 & RFA No. 243 of 2016Case Title: Thankamany and another v. Asst. Executive Engineer, KSEB and othersCitation: 2025 LiveLaw (Ker) 287Counsel for the Appellants: R. Sudhish, M. ManjuCounsel for Respondents: P.A. Ahamed, SC - KSEB, Pulikool Abubacker, SC -KSEB, B. Premod, SC - KSEBClick to Read/Download Order

Appellate Court Cannot Waive Payment Of Court Fee Before Trial Court On Account Of Settlement Of Appeal: Kerala High Court

K. Salma Jennath

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