Partly allowed

Simon C.Thomas v. P.v.Paul

Kerala HC6 Mar 2023RFA/47/2019

Case brief

AI extract

What is this about?

The single-judge bench deprecated the practice of incorporating in mediation settlements a clause agreeing to refund court fees paid at the first instance. The court held such clauses contrary to law and deleted the offending provision from the settlement while accepting the rest and dismissing the appeal.

What did the court decide?

Deleted the clause in the settlement agreement allowing refund of court fee paid at the first instance; accepted the remainder of the compromise; appeal disposed.

Simon C.Thomas Vs P.v.Paul — Civil Procedure and Limitation | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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MONDAY, THE 6^th DAY OF MARCH 2023 / 15TH PHALGUNA, 1944

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RFA NO. 47 OF 2019 (E)

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AGAINST THE JUDGMENT & DECREE DATED 26.08.2017 IN OS No.18/2012 OF

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ADDITIONAL SUB COURT, PALAKKAD

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APPELLANT/DEFENDANT:

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1 SIMON C.THOMAS, AGED 70 YEARS, (DIED) S/o CHACKO THOMAS, PENSIONER, PULIMOOTTIL FLAT NO.4, NEAR PATHANANDU MILK SOCIETY, KANGAZHA POST, KOTTAYAM, PIN-686541, NOW RESIDING AT ABHISHEK, HARITHA NAGAR, WEST YAKKARA.P.O., PALAKKAD-678001.

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ADDL.A2 ALICE CHERIYAN, (W/o DECEASED APPELLANT), NO. 36, THARA NAGAR II, CHANDRANAGAR P.O., PALAKKAD - 678007

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ADDL.A3 STANLEY SIMON, AGED 41 YEARS, (S/o DECEASED APPELLANT), NO. 36, THARA NAGAR II, CHANDRANAGAR P.O., PALAKKAD - 678007

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ADDL.A4 SHERLEY SHAJI, (D/o DECEASED APPELLANT), KIZHAKKEPARAMBIL HOUSE, KOTHALA P.O., PAMPADY, KOTTAYAM-686502, NOW RESIDING AT PENIEL HOUSE, KUZHIKKALA P.O., PATHANAMTHITTA DISTRICT - 689644

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(LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 VIDE ORDER DATED 01/07/2020 IN IA 1/2020)

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BY ADVS. P.VIJAYAKUMAR SRI.C.R.REGHUNATHAN SRI.B.HARRYLAL SRI.M.V.ASHIM SRI.R.BALAKRISHNAN SMT.U.RESHMA GOPAN

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RESPONDENT/PLAINTIFF:

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P.V.PAUL, S/o VARKEY, AGED 58 YEARS, AGRICULTURIST, PALAMKUNNEL HOUSE, PATTIPARAMBU, THIRUVALWAMALA VILLAGE,THALAPALLY TALUK,TRICHUR-678008

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BY ADVS. SRI.JOPHY POTHEN KANDANKARY SRI.LIJU. M.P SRI.SAJAN VARGHESE.K.

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

RFA No.47 of 2019

JUDGMENT

It is quite unfortunate that it has become the usual

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practice to defraud the court and to obtain a decree for refund of court fee paid at the first instance, besides the court fee paid at the first appellate court by incorporating a clause in the settlement. Normally, such settlement will be accepted without noticing the refund clause incorporated for getting the court fee paid at the first instance. In fact, the parties are entitled to get back the court fee paid at the first appellate stage when it was settled after the passing of decree by the trial

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court and they are not entitled to get return of the

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court fee paid at the first instance. Hence, such

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practice of incorporation of refund clause regarding the court fee paid at the first instance is highly deprecated. It is against the provision of law.

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Incorporation of such clause would make the compromise unacceptable, since it is against the law in force. Nobody shall be permitted to circumvent the provisions of law by using such device and to get undue advantage by

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RFA No.47 of 2019 3

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defrauding the court. The clause (5) incorporated in the

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present settlement/compromise that “both parties agree

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that the full court fee paid in both the courts be refunded” will stand deleted. The rest of part of the compromise is hereby accepted and a decree is passed in terms of the rest of part of the compromise and the same will form part of the judgment and decree. Appeal is disposed of accordingly.

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The Registry is directed to circulate a copy of this judgment to all the Mediators attached to this court and

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a copy to the Mediation Centre, High Court of Kerala for information.

P.SOMARAJAN

JUDGE

DMR/-

The order dated 30.05.2023 in IA 1/2023 in RFA

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No.47/2019 that “The matter is settled in mediation, and

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as such it would squarely come under the purview of Section 69A of the Act. Hence, the Registry is directed

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RFA No.47 of 2019

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to refund the entire court fee paid at the first appellate stage.” is appended to the judgment dated

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06.03.2023 in RFA No.47/2019.

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Sd/-

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JOINT REGISTRAR

Simon C.Thomas v. P.v.Paul

Case brief

What is this about?

What did the court decide?

Simon C.Thomas v. P.v.Paul

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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