This is appeal filed by the plaintiff in O.S.135 of 1995 on the file of the sub Court Muvattupuzha challenging that part of the judgment and decree passed by the trial court whereby it was directed that a copy of the decree be forwarded to the District Collector for realization of court fee.

2. The suit O.S.135 of 1995 one instituted by the appellant-plaintiff as an indigent person obtaining permission of court. The defendant entered appearance in the suit and it is submitted that the defendants filed written statement also. Thereafter the suit was dismissed as not pressed and later it was again restored on an application vide I.A.374 of 1998. Thereafter the suit was withdrawn with liberty to file fresh suit vide order on I.A.375 of 1996. It was while withdrawing the suit with such leave that the trial court directed that a copy of the decree be forwarded to the District Collector for realization of court fee.

3. Rule 11 of Order XXXIII C.P.C. stipulates the procedure to be adopted by the court inter alia in the event of a suit by an indigent person being

“11. Procedure where indigent person fails.

Where the plaintiff fails in the suit or the permission granted to him to sue as an indigent person has been withdrawn, or where the suit is withdrawn or dismissed,--

(a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the court-fee or postal charges(if any) chargeable for such service or to present copies of the plaint or concise statement, or

(b) because the plaintiff does not appear when the suit is called on for hearing.

The Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, 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”.

4. Order 11 would suggest that when the suit is withdrawn the court shall order the plaintiff or any person added as a co-plaintiff to the suit. To pay the court fee that would have been paid by the plaintiff if he had not been permitted to sue as an indigent person. In the instant case admittedly the suit was being withdrawn after the stage when the liability for payment of balance court fee had already arisen. When that be so, the court fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person is the actual court fee payable in the suit. There is therefore no infirmity or illegality in the judgment and decree passed by the trial court directing a copy of the decree being forwarded to the District Collector to realize the court fee that would have been paid by the plaintiff had he not been permitted to sue as an indigent person.

5. Counsel for the appellant relies on the decision rendered by a learned Judge of this court in Aravindaksha Prabhu v. Shamsudheen (2003 (1) K.L.T.644) wherein it has been held that even in a case where the plaintiff makes a statement that he does not want any relief and gets the suit dismissed will also be a case of the suit being decided solely on the basis of the statement admission made by the plaintiff without any investigation and consequently one half of the court fee shall be liable to be refunded under Section 69 of the Kerala Court Fees and Suits Valuation Act.

6. The argument is that when a suit is decided solely on the admission of the parties without any investigation, one half of the court fee paid on the plaint is liable to be refunded to the party by whom the same has been paid; that the decision in Aravindakasha Prabhu’s case enables half court fee to be got refunded even in case where the suit is got dismissed without any investigation by the plaintiff stating that he does not want any relief in the suit and therefore even in the event of court fee being ordered to be realized under rule 11 of Order XXXIII of the Code of Civil Procedure by forwarding a copy of the decree, it should have been ordered that only half c