An indigent appellant is not liable for court fees unless permission to proceed as an indigent is granted by the court after a proper inquiry.

ORDER :

G. Girish, J.

The question to be decided now, in view of a submission put up by the Decree Section of this Court, is whether the appellant is liable to pay 1/3^rd of the court fee payable on this appeal in spite of the dismissal of the C.M.C.P seeking permission to institute the appeal as an indigent person, along with the R.F.A, as withdrawn.

2. The 4^th defendant in O.S.No.882/2013 on the files of the Principal Sub Court, Thrissur had filed C.M.C.P.No.22 of 2019 under Order XXXIII Rule 1 of the Code of Civil Procedure seeking permission to file this Regular First Appeal as an indigent person, against the money decree passed in the aforesaid case. On 04.03.2020, notice by speed post was ordered to respondents 1 to 4, and the learned Government Pleader was directed to file a report of the District Collector within one month about the indigency of the appellant. Thereafter, on 09.06.2020, the Tahsildar, Kodungalloor had sent a report addressed to the learned Advocate General stating that the appellant/applicant is in possession of 0.1113 Hectares of land and a terraced residential building of 2000 sq.ft in Panangad Village which would fetch a value of Rs.1,39,98,215/-. It was further reported thereunder that the annual family income of the appellant/applicant is estimated as Rs.7,70,808/-.

3. When the case was taken up for consideration on 04.01.2024, the learned counsel for the appellant/applicant submitted that the indigent application as well as the Regular First Appeal against the impugned decree of the Trial Court are not pressed since the amount due to the 1^st respondent/plaintiff had already been paid. In view of the aforesaid submission of the learned counsel for the appellant/applicant, the C.M.C.P as well as the Regular First Appeal were dismissed as withdrawn.

4. On 04.07.2024, a note was put up from the Decree Section stating that since the C.M.C.P is dismissed, 1/3^rd of the court fee has to be paid, and no order regarding the payment of court fee is passed. Accordingly, the matter was listed to this Bench.

5. Heard the learned counsel for the appellant/applicant and the learned Government Pleader representing the State of Kerala.

6. Referring to notification No.D1(A)-4350/86 dated 13.01.1999 published in Kerala Gazette dated 27^th April, 1999, the learned counsel for the appellant submitted that Rule 11 of Order XXXIII of the Code of Civil Procedure was amended by the Kerala Legislature substituting the word ‘shall’ occurring after clause (b) thereof by the word ‘may’, and hence the court is having the discretion to decide whether an indigent person should be exempted or not from the payment of court fees in the facts and circumstances of a particular case. The Division Bench decisions of this Court in Joseph v. Kerala State Electricity Board and Another [2012 (4) KHC 753] and Kochupailo v. Reena and Others , [2015(1) KHC 361] have been relied on by the learned counsel for the appellant to canvass his point that in an appropriate case like the present one, where there had been an out of court settlement before the court proceeding with the enquiry relating to the indigency of the appellant, the court could very well exercise its discretion to exempt the appellant from making payment of the court fee.

7. Per contra, the learned Senior Government Pleader submitted that the State amendments enacted prior to the Central amendment made to the Code of Civil Procedure vide Civil Procedure (Amendment) Act, 1999, and Civil Procedure (Amendment)Act, 2002 would cease to be in operation, to the extent to which it is inconsistent or repugnant to the above Central Amendments. Thus, it is argued by the learned Senior Government Pleader that the State Amendment made to Order XXXIII Rule 11 vide Notific