The recording of evidence under S. 69 of the Court Fees Act includes the marking of documentary evidence in evidence, and therefore, no refund of court fees is permissible if documentary evidence has been marked in evidence, even if no oral evidence has been recorded.

ORDER :- This revision has been preferred against the order of the learned District Munsif, Tirunelveli, rejecting the application of the petitioner for refund of half the court-fee paid on the plaint under S. 69 of the Court Fees Act. The suit had been filed in February 1960 and on 20-11-1961 the case was taken up for hearing. The two exhibits, Exs. A-1 and A-2, were marked in evidence. However, before any oral evidence was recorded in the suit, it was reported as settled out of Court and it was dismissed.

2. Section 69 of the Madras Court Fees and Suits Valuation Act, 1956, which provides for refund of half the court-fees on settlement of the ease before hearing, runs thus :

S. 69: "Wherever any suit is dismissed as settled out of Court, before any evidence has been recorded on the merits of the claim, half the amount of all fees paid in respect of the claim or claims in the suit shall be ordered by the Court to be refunded to the parties by whom the same have been respectively paid.

Explanation: The expression 'merits of the claim' shall have the meaning assigned to it in S. 12."

3. The explanation under S. 12 provides that the expression "merits of the claim" refers to matters, which arise for determination in the suit, not being matters relating to the frame of the suit, misjoinder of parties and cause of action, the jurisdiction of the Court to entertain or try the suit and the fee payable, but inclusive of matters arising on pleas of res judicata, limitation and the like.

4. It is not disputed that Exs. A-1 and A-2, which had been marked in evidence, related to the merits of the claim. What the learned counsel for the petitioner contends is that S. 69 speaks of recording of evidence, and unless oral evidence had been recorded, be could claim the benefit of the section, if the suit was settled out of Court, and got dismissed on that ground. Learned counsel submits that any dismissal of the suit as settled out of Court would entitle the party to refund of the court-fee, provided no oral evidence had been taken on the merits of the claim. Learned counsel contends that the use of the word "recorded" in the section can only refer to the recording of oral evidence and not to the marking of documentary evidence. To sustain this argument, learned counsel drew my attention to certain provisions in the Criminal Procedure Code, like S. 354, where the word "recorded" has been used with reference to the evidence of witnesses. But a perusal of the section and the connected provisions would show that the word "recorded" is used in the sense of being made part of the record. Section 356 of the Cri. P. C. speaks of evidence being taken down in writing, and, on certain formalities as provided in the section being compiled with, it forming part of the record. A record generally means an official written report of public proceedings, as of a legislature or Court of law. It also means documents preserved as evidence of proceedings, as of a Court.

5. Evidence in a case can both be oral and documentary, and instances are not infrequent, where cases are disposed of purely on documentary evidence at times massive. That the word "recorded" is used with reference to documentary evidence also will be clear, if the marginal heading of O. XIII, R. 7, C. P. C. is referred to, which speaks of recording of admitted and return of rejected documents. Documentary evidence also forms part of the record of the case, and, therefore, gets record like oral evidence. S. 69 of the Court-fees Act refers to any evidence being recorded; that means, even if documentary evidence, relating to the merits of the claim, has gone into the record, the party will not be entitled to the benefit of Section 69. The argument is without substance.

6. Learned counsel for the petitioner relied upon the decision of this Court in Paramasiva Mudaliar v. Krishnaveni Ammal, 1965-1 Mad LJ 169, but I do not think that the case in question is of any help to the petitioner. There, the suit had

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