An appellant is entitled to a refund of one-half of the court fee paid on the memorandum of appeal if it is rejected on the ground of delay in presentation, as per S.66(2) of the Kerala Court Fees and Suits Valuation Act.

A.K. BASHEER, J.

1. “When an appeal is dismissed consequent on the dismissal of the petition for condonation of delay in filing the appeal within the prescribed period of limitation, is not the appellant entitled to refund of one-half of the court fee paid under the second proviso to S.52 of the Kerala Court Fees and Suits Valuation Act and Rules?”

2. The above question has been posed and referred to the Full Bench to consider whether the decision in Zakariyas v. Johny (1999 (3) KLT 419) (Ed.Note: Please see Zakariyas v. Johny (1999 (3) KLT 419) decided on 9.9.1999 by P.K. Balasubramanyan & K.A. Mohamed Shafi, JJ.) has been correctly decided, wherein the issue has been answered in the negative.

3. The Division Bench while making the reference took the view that in Zakariyas (supra) the Bench which decided the case had not dealt with the impact of the amendment to S.52 and that if the second proviso to S.52 is read with S.66(2) of the Act, the appellant would be entitled to refund of one-half of the one-third court fee paid at the time of admission of the appeal.

4. The Kerala Court Fees and Suits Valuation Act 1959 was amended by Act 6 of 1991 with effect from December 5, 1990. S.4A which deals with levy of court fee in suits was inserted in Chapter II of the Act, which reads as hereunder:

“4A. Levy of fee at the time of institution of suit:- Notwithstanding anything contained in any other provisions of this Act, the amount of fee to be paid on plaint at the time of institution of suit shall be one-tenth of the amount of fee chargeable under this Act and the balance amount shall be paid within such period, not later than fifteen days from the date of framing of issues or where framing of issues is not necessary, within such period not exceeding fifteen days as may be specified by the Court:

Provided that the Court may for sufficient reasons to be recorded in writing extend the period up to thirty days:

Provided further that if the parties settle the dispute within the period, specified or extended by the Court for the payment of the balance amount, the plaintiff shall not be called upon to pay such balance”.

5. S.52 which deals with court fee payable in appeals was also amended by inserting two new provisos in that section, in tune with the provisions contained in S.4A. The relevant provisions in S.52 are extracted hereunder:

“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 the 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:

Provided also that the Court may, for sufficient reasons to be recorded in writing, extend the period up to thirty days.”

The second proviso which was newly inserted in S.52 stipulates that only one-third of the fee payable on an appeal need be paid at the stage of admission of first appeal or second appeal as the case may be, and the balance shall be paid not later than 15 days from the date of such admission, in case the appeal is admitted. The third proviso enables the Court to extend the period for payment of balance court fee up to 30 days for sufficient reasons to be recorded by the court in writing.

6. Obviously, the amendment made to S.4A and S.52 was mainly intended to ameliorate the difficulties and lessen the burden of litigants to some extent. In the case of a suit to be instituted on the original side,