The provision for refund of court fees before any evidence has been recorded on the merits of the claim does not apply to appeals. Appellants may seek ex gratia relief from the government.

Sanjay Kishan Kaul, CJ.

The dispute between the parties has been settled out of Court and a sum of Rs.13,00,000/-is stated to have been paid to the appellant by the respondents, by way of two demand drafts. A Memo has been filed by the appellant, thus seeking disposal of the appeal, as compromised.

2. The appeal is accordingly disposed of as compromised, since the claim of the appellant stands satisfied. The compromise memo shall form part of the record. Connected miscellaneous petition is closed.

3. The appellant, however, has prayed for refund of the Court Fees paid on the appeal memorandum, under Section 69 of the Tamil Nadu Court Fees and Suit Valuation Act, 1955 (in short "the Act"). The said provision reads as under:

"69. Refund on settlement before hearing.--Whenever 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."

4. The submission of the learned counsel for the appellant is that the appellant, as the original plaintiff, has paid the Court fees on the suit, which was dismissed. In appeal, matter has been compromised. The appeal is continuation of the suit proceedings. No additional evidence has been led-in in the appeal and thus the bar of "before any evidence" would not apply.

5. We are unable to persuade ourselves to agree with the submission of the learned counsel for the appellant. The legislative intent is quite clear that this provision is applicable to a suit and that too, before any evidence has been recorded on the merits of the claim. It does not apply in appeal. If the legislative intent was otherwise, the issue of refund of court fees in appeal would also have been dealt with under this provision. Not only that, even assuming that the appeal is taken as continuation of suit proceedings, the benefit would be available if no evidence was recorded, on merits, which would be a factual/procedural impossibility. We are, thus, unable to accede to the prayer of the learned counsel for the appellant. This is not also a settlement under ADR Mechanism under Section 89 of the Code of Civil Procedure, 1908, which would have enabled us to grant benefit to the appellant under Section 69-A of the Act. We can only sympathise with the appellant.

6. At this stage, an Order of a Division Bench of this Court in Jayalakshmi & 5 Others vs. M/s.Vasavi Transport, etc. & another - 1995-2-L.W.110, has been brought to our notice by Mr. K.GOVINDARAJAN, learned counsel, who happens to be present in Court. In the said order, while recognising the absence of any provision under the said Act for refund of court fees in appeals, it was opined that the same would not preclude the appellants from making an application to the Government ex gratia ad misericordia domini regis ("by favour" and "by the mercy of our Lord the King") and for that purpose, a certificate was directed to be granted by the Registry to the appellants as to the valuation of the stamps affixed on the Memorandum of Appeal, which stood defaced and the Government was directed to pass an order, as they deem fit, after perusing the certificate, as it is wholly ex gratia ad misericordia domini regis.

7. The learned counsel for the appellant, in view of the aforesaid observation, seeks the same relief.

8. We are inclined to accede to the request of the learned counsel for the appellant, specifically considering the fact that the appeal has been withdrawn, after settlement. The appellant would have been able to obtain refund of the Court fees under Section 69-A of the said Act, on a recourse of ADR Mechanism under Section 89 of C.P.C. being resorted to. The said provision was introduced as an incentive to aid in assistance to ADR Mechanism as well the process of settlement of lis. The only difference is that the present se