JUDGMENT

Dated this the 12th day of August, 2022 The original petition is filed to set aside the order in I.A.No.377/2019 in O.S.No.297/2016 (Ext.P4)

of the Court of the Munsiff, South Paravur.

2. The petitioner's case is that, he is the plaintiff in the above suit filed against the respondent. During the pendency of the suit, the parties were referred for mediation. They settled the dispute and entered into Ext.P2, memorandum of agreement before the mediator, attached to the District Mediation Centre, Kollam. The petitioner filed I.A.No.377/2019, for refund of the court fee paid as provided under Section 69(A) of the Kerala Court Fees and Suit Valuation Act. But, the court below has dismissed the application holding that, as the suit is dismissed as not pressed, the petitioner is not entitled for refund of court fee. Ext.P4 is erroneous and wrong. Hence, the original petition.

3. Heard; Sri.M.R.Sarin, the learned counsel appearing for the petitioner. In the light of the limited relief that I propose to pass, I dispense with notice to the respondent.

4. When this original petition came up for consideration on 29.07.2022, this Court had called for a report from the court below, to ascertain whether the parties were referred for mediation and whether Ext.P2 memorandum of agreement was filed in the suit.

5. The learned Munsiff, South Paravur, by communication dated 02.08.2022, has reported that the petitioner and the respondent were referred for mediation on 24.10.2017 and they reported that the dispute was settled between them on 26.10.2017. The mediation report was filed in the court on 20.03.2018, reporting that the dispute has been fully and finally settled and the petitioner has stated that he has no objection in the order of attachment being lifted. However, before receiving the mediation report, the plaintiff had filed a memo stating that the suit may be dismissed as not pressed. Accordingly, the court below suo motu advanced the case and the suit was dismissed as 'not pressed', after lifting the order of attachment. It was in the above circumstances, that Ext.P4 order was passed.

6. The question is whether there is any error in Ext.P4 order.

7. It is undisputed, that the parties to the suit were referred to mediation and the dispute between the petitioner and the respondent was settled as per Ext.P2 memorandum of agreement executed between them as provided Under Section 89 of the Code of Civil Procedure (in short 'Code') read with Rules 24 and 25 of the Civil Procedure (Mediation Rules, 2005). It is also reported that Ext.P2 has been filed in the suit. When the court below had referred the parties to mediation, the court below was obliged to await the mediation report before passing any further orders in the suit. It is also statutory that when a suit is settled under Section 89 of the Code, without adjudication, the plaintiff is entitled for refund of the entire court fee as provided in Section 69 (A) of the Kerala Court Fees and Suit Valuation Act, 1959.

8. In the above legal and factual background, I am of the view that Ext.P4 order passed by the court below is erroneous and wrong. The court below ought to have recorded Ext.P2 memorandum of agreement and disposed of the suit as per the terms and conditions in the mediation agreement, instead of dismissing the suit as not pressed. Nevertheless, as a decree has already been passed, the petitioner's proper remedy would be to seek for the review of the decree rather than assailing an ancillary order.

In the result, I dispose of the original petition in the following manner:-

(i) The petitioner would be at liberty to move the court below and seek for the review of the decree dismissing the suit as not pressed.

(ii) If the review petition is allowed and the decree is set aside, and the suit is reopened, the court below shall act upon Ext.P2 mediation agreement and dispose of the suit in accordance with Ext.P2 and order the refund of the entire court fee as provided under Section 69 (A