IMPORTANT POINT
Withdrawal of an appeal constitutes abandonment, and unilateral withdrawal does not entitle the appellant to a refund of court fees under the Kerala Court Fees and Suit Valuation Act.

JUDGMENT

This Regular First Appeal has been filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 (for short 'C.P.C.' hereinafter), challenging the judgment and decree dated 12.02.2014 in O.S.No.149/2012 on the files of the Sub Court, Perumbavoor.

2. Today, when this matter is taken up, the learned counsel for the appellant submitted that this appeal is not intended to be proceeded and I.A.No.1/2024 to withdraw this appeal and I.A.No.2/2024 to refund the court fee have been filed. The learned counsel pressed for withdrawing the appeal as sought for in the petitions.

3. In view of the above submission, the questions arise for consideration are as under;

(1) Whether I.A.No.1/2024 is liable to be allowed by granting permission to withdraw the suit, without affecting the right of the appeal to file fresh RFA, if required?

(2) Whether I.A.No.2/2024 is liable to be allowed so as to grant refund of court fee in view of withdrawal of this appeal?

4. Point No.1:- I.A.No.1/2024 has been filed by the appellant to withdraw the appeal without affecting his right to file fresh RFA, if required. In fact, the withdrawal sought for in this petition is without affecting the right of the appellant to file a fresh RFA if required cannot be allowed as such. Withdrawing an appeal is abandoning the appeal, where the right to file fresh appeal could not be protected. Therefore, the prayer can be allowed without granting the said relief.

5. Accordingly, I.A.No.1/2024 stands allowed and this appeal is dismissed as withdrawn and the withdrawal has the effect of abandoning the appeal and the right of appeal.

6. Point No.2:- I.A.No.2/2024 is a petition filed to refund Rs.36,050/-, full court fee paid by the appellant in the appeal in view of withdrawal.

7. According to the learned counsel for the appellant/plaintiff, the appellant is a person aged 69 years and taking a lenient view in consideration of the withdrawal of this appeal, Rs.36,050/- paid as court fee may be refunded. Even though the learned counsel was asked to justify the enabling provision in the Kerala Court Fees and Suits Valuation Act, which permits refund of court fee when an appeal is withdrawn unilaterally, his submission is confined to leniency and compassion and not on legal substratum.

8. In this context, the question arises for consideration is whether an appellant who voluntarily withdraws an appeal is entitled for the refund of the court fee he had paid?

9. Section 69 and Section 69A of Kerala Court Fees and Suit Valuation Act (for short 'the KCFSV Act' hereinafter), 1959 deal with refund of court fee in cases of compromise or when the suit is decided on the admission of the parties and refund of court-fee in case where the dispute is settled under Section 89 of the C.P.C.

10. Section 69 of the KCFSV Act provides as under;

69. Refund in cases of compromise or when Suit is decided on the admission of Parties.—

When a suit or appeal is compromised or 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 or memorandum of appeal shall be ordered by the Court to be refunded to the parties by whom the same have been paid respectively.

Provided that no refund shall be ordered where only one-tenth of the amount of fee on plaint as required by Section 4A or one- third of the amount of fee on memorandum of appeal as required by Section 52 has been paid by the parties.

11. Section 69A of the KCFSV Act introduced with effect from 01.04.2013 provides as under;

69A. Refund of court fee in case where the dispute is settled under section 89 of the Code of Civil Procedure.-

Where a suit, appeal or other Proceeding before any court is settled by recourse to section 89 of the Code of Civil Procedure, 1908 (Central Act 5 of 1908), the whole court fee paid