Hussain vs Hassan
2022 Latest Caselaw 7397 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
              THE HONOURABLE MRS. JUSTICE C.S. SUDHA
    FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
                         RP NO. 56 OF 2022
AGAINST THE JUDGMENT DTD 1/11/2021 IN OP(C) 980/2016 OF HIGH
                          COURT OF KERALA
REVIEW PETITIONER/PETITIONER

             HUSSAIN
             AGED 63 YEARS
             S/O.ALAVI, KODAKKADAN KOMANCHERY HOUSE, KURUVATTOOR
             AMSOM DESOM AND POST, OTTAPALAM TALUK, PALAKKAD
             DISTRICT - 679 336.
             BY ADV R.SREEHARI


RESPONDENT/RESPONDENT:

             HASSAN
             AGED 58 YEARS
             S/O.ALAVI, KODAKKADAN KOMANCHERY HOUSE, KURUVATTOOR
             AMSOM DESOM AND POST, OTTAPALAM TALUK, PALAKKAD
             DISTRICT - 679 336.

     THIS REVIEW PETITION HAVING COME UP FOR FINAL HEARING ON
24.06.2022,     THE   COURT   ON   THE     SAME   DAY   DELIVERED   THE
FOLLOWING:
                                              2

R.P.No.56 of 2022 in O.P.(C)No.980 of 2016



                                   C.S. SUDHA, J.
                 ---------------------------------------------------------
                 R.P.No.56 of 2022 in O.P.(C)No.980 of 2016
                ------------------------------------------------------------
                       Dated this the 24th day of June, 2022

                                  JUDGMENT

This petition filed under Section 114 and Order 47 Rule 1

CPC is for reviewing the judgment dated 01/11/2021 dismissing O.P.

(C)No.980/2016. The original petition was filed against the dismissal of

Ext.P7, a review petition filed in O.S.No.51/2012 on the file of the Sub

Court, Ottappalam. The plaintiff in the suit is the petitioner and the

defendant, the respondent in the original petition and in this review petition.

The parties herein will be referred to as described in the original petition.

2. The petitioner filed the aforesaid suit for partition. Ext.P1

plaint shows that there are two prayers in the plaint, namely, prayer 'A' for

partition of the plaint schedule property by metes and bounds and for

allotment of one-half share to the petitioner and prayer 'B' for settlement of

accounts and for realizing past mesne profits of ₹ 25 lakhs and in case the

R.P.No.56 of 2022 in O.P.(C)No.980 of 2016

court finds more amount to be due to the petitioner, the said amount also,

together with interest @ 12% p.a. from the date of suit till realization and

costs from the respondent and his assets. Based on the pleadings of the

parties, issues were framed by the court below as evidenced by Ext.P4. On

13/12/2013 an endorsement is seen made and signed by the counsel for

either side in the Proceeding paper (Ext.P4-6) of the court below, which

reads - "Preliminary decree of plaint schedule properties ½ share to the plaintiff

and ½ share to the defendant leaving all other questions raised to be decided in

the final decree stage. ½ court fee may be refunded." (Emphasis supplied)

3. Ext.P5 judgment of the court below reads -

"Both sides agreed that a preliminary decree can be passed leaving the other questions to the stage of final decree. Hence a preliminary decree is passed as follows:

1. The plaint schedule property shall be partitioned by metes and bounds into 2 equal shares and one such share is allotted to the plaintiff.

2. The defendant shall be entitled to get the remaining one share.

3. The allotment of share to the defendant is subject to the payment of requisite court fee.

R.P.No.56 of 2022 in O.P.(C)No.980 of 2016

4. The plaintiff shall be entitled to get past and future share of profits proportionate to his share, the quantum of which is left to be decided at the stage of final decree.

5. The claim for past profit is limited to three years prior to the filing of the suit, but future profits shall accrue till the date of obtaining possession of the property.

6. The costs of the suit shall flow from the estate.

7. Any eligible party can apply for passing a final decree for effecting physical division of the property in tune with the directions.

8. The suit is adjourned sine die for the above."

4. Pursuant to Ext.P5 judgment, Ext.P7 application for review

of the judgment was filed by the petitioner alleging that the court below had

omitted to note that the respondent, as the power of attorney holder of the

petitioner, was bound to show the accounts right from the date of agency and

not merely for three years prior to the date of suit; that the court below ought

not to have adjudicated on the issue of mesne profits in the preliminary

decree as the parties had only consented to a decree for partition of the plaint

schedule property and had agreed to relegate all other questions raised, to the

final decree proceedings; that the court ought not to have limited the

R.P.No.56 of 2022 in O.P.(C)No.980 of 2016

entitlement of the plaintiff to past mesne profits for a period of 3 years and

that as the decree was passed on consent, one-half court fee ought to have

been refunded to the plaintiff. By Ext.P9 order dated 05/08/2015, Ext.P7

application for review was dismissed.

5. Aggrieved by Ext.P9 order, the aforesaid O.P.(C) had been

filed by the petitioner reiterating the allegations in Ext.P7 application for

review. When the original petition came up for hearing, the only point urged

before this Court was that the court below had gone wrong in disallowing the

request for refund of one-half court fees as provided under Section 69 of the

Kerala Court Fees and Suits Valuation Act, 1959(the Act). The relevant

portion of the judgment dated 01/11/2021 passed by this Court reads -

"4. The Court below by Ext.P5 judgment passed a decree for partition and ordered the plaint scheduled property to be partitioned by metes and bounds into two equal shares and to allot one share each to the petitioner and respondent respectively. All the other matters including the right of the petitioner-plaintiff to get past and future mesne profits proportionate to his share was relegated to be decided at the final decree stage. In such circumstances, the refund of half of the court fee paid by the petitioner-plaintiff cannot be ordered as the entire reliefs sought for

R.P.No.56 of 2022 in O.P.(C)No.980 of 2016

in the plaint has not been decided on consent. That being the position, the court below was justified in not allowing refund of half of the court fee paid as prayed for. ........"

It is aggrieved by the aforesaid order, the present review petition has been

filed.

6. Heard Sri.R.Sreehari, the learned counsel for the review

petitioner and Sri.P.Jayaram, the learned counsel for the respondent.

7. In the present review petition it is alleged that- "the judgment

passed without considering the relief claimed in the suit is an error apparent

on the face of the record and hence the judgment is liable to be reviewed."

Grounds (B) and (C) of the review petition relating to Ext.P5 judgment of

the court below reads -

"B. In the judgment no adjudication whatsoever has been made by the Court below with respect to the claim of Rupees twenty-five lakhs.

Therefore the finding entered by this Honourable Court with the said issue was relegated to be decided at the final decree stage is incorrect and what is relegated is with respect to the right of the Petitioner-Plaintiff to get past and future mesne profit proportionate to his share and not the monitary

R.P.No.56 of 2022 in O.P.(C)No.980 of 2016

claim of Rupees twenty five lakhs. Therefore what is sought to be refunded is half of the Court fee paid with respect to the relief No.2 pertaining to a sum of Rupees twenty-five lakhs which has nothing to do with the mesne profit. Therefore the non-consideration of the material available on record warrants interference by revisional jurisdiction of this Honourable Court.

C. It is submitted that the above omission on the part of this Honourable Court to consider the same is an error apparent on the face of the record. It is submitted that the said claim of Rupees twenty-five lakh in the plaint for which court fee was also paid will not be answered or considered in the final decree stage as the Preliminary decree passed does not confer such authority. Therefore this crucial aspect was erred to be considered by this Honourable Court while passing the impugned judgment."

8. The learned counsel for the petitioner submitted that the

court below in Ext.P5 judgment has not allowed prayer 'B' in the plaint

claiming past mesne profits of ₹25 lakhs with interest and costs from the

respondent. The said judgment has become final as no appeal has been

preferred against the same and therefore it must be taken that the petitioner

has given up/abandoned or not pressed the said relief. Hence as per the

dictum in Philomina Joseph vs. State of Kerala, 2009(1) KLT 591 and

R.P.No.56 of 2022 in O.P.(C)No.980 of 2016

High Court of Judicature at Madras rep. by its Registrar General vs.

M.C. Subramaniam, 2021(3) SCC 560, the petitioner must be held to be

entitled to refund of one-half court fees.

9. Section 69 of the Act reads-

"69. Refund in cases of compromise or when suit is decided on the admission of parties. --When a suit or appeal is compromised or when a suit is decided solely on the admission of the parties without any investigation, one-half of the Court fee paid on the plaint or memorandum of appeal shall be ordered by the Court to be refunded to the parties by whom the same have been paid respectively. Provided that no refund shall be ordered where only one-tenth of the amount of fee on plaint as required by Section 4A or one-third of the amount of fee on memorandum of appeal as required by Section 52 has been paid by the parties." (Emphasis supplied)

Therefore, it is only when a suit is compromised or is decided solely on the

admission of the parties without any investigation, that the plaintiff is

entitled to refund of one-half court fees paid on the plaint.

10. In M.C. Subramaniam (Supra), the gravamen of the

petitioner's contention was that S.69A of the Tamil Nadu Court Fees and Suit

R.P.No.56 of 2022 in O.P.(C)No.980 of 2016

Valuation Act, 1955 (the said section is pari materia to S.69A of the Act)

dealing with refund on settlement of disputes under S.89 CPC, only

contemplates refund of court fees in those cases where the Court itself refers

the parties to any of the alternative dispute settlement mechanisms listed in

S.89 and that it does not apply to circumstances where the parties, without

any reference by the Court, privately agreed to settle their dispute outside the

modes contemplated under S.89 CPC. The Apex Court rejected the said

contention and held that though a strict construction of the terms of S.89

CPC and S.69A of the 1955 Act may not encompass such private

negotiations and settlements between the parties, it was emphasized that the

participants in such settlements would also be entitled to the same benefits as

those who have been referred to explore alternate dispute settlement methods

under S.89 CPC.

11. In Philomina Joseph (Supra) a Division Bench of this

Court held that when a suit is dismissed as not pressed, the plaintiff is

admitting that he has no case and binds himself by way of O.II R.2 CPC.

R.P.No.56 of 2022 in O.P.(C)No.980 of 2016

This according to the Bench, is an admission and as the suit is decided

without any investigation, S.69 of the Act applies and so the plaintiff is

entitled to refund of one-half court fees.

12. Philomina Joseph (Supra) has been overruled by a Full

Bench decision of this Court in Abdul Azeez vs. Nedungadi Bank Ltd.,

Kollam: 2017(2) KHC 389. It has been held that a suit is decided solely on

the admission of the parties without any investigation only if the plaint claim

or the counter claim is conceded in whole or in part by the defendant or the

plaintiff as the case may be. An 'admission' in the context can only mean

acknowledgment as true (about which there is no dispute) which has to

emanate from the person who was originally resisting the claim. A unilateral

assertion by the plaintiff in the plaint claim or by the defendant in the

counter claim withdrawing therefrom tantamount to an abandonment or

relinquishment and is not an 'admission'. A mere submission or statement of

one of the parties that there has been a settlement with the other cannot be

treated as an admission made in the proceedings before Court. The Bench

R.P.No.56 of 2022 in O.P.(C)No.980 of 2016

referring to Order XII R.6 CPC and S.19 of the Evidence Act held that the

said statutory provisions imply that the Court is absolved of the duty to

determine the disputed fact when the same asserted in the pleading or

otherwise, is conceded to by the opponent in view of the admission. The

admission should not only be against the interest of the maker but should

also concede in whole or in part, the claim made by the opponent for the

same to be legally reckoned. The result of such a 'compromise' or an

'admission' would enable the Court to dispose of the suit without any

investigation clothing the plaintiff with the right to seek refund of one-half of

the fee paid thereon. It is not the mere absence of investigation that

determines the entitlement of the plaintiff to claim refund of fee. The

absence of investigation is a corollary of the compromise or admission on

the basis of which the suit is disposed of and the same is not an indicia for

S.69 of the Act to apply.

12.1. It has been further held that, when the plaintiff submits

that he does not want a decree as the matter has been settled by him and the

R.P.No.56 of 2022 in O.P.(C)No.980 of 2016

defendant, the latter does not admit any fact pleaded by the former. The

judgment passed on such submission is not a judgment on admission.

Abandonment is relinquishment, the meaning of which is giving up. The

plaintiff may relinquish any one or more of the claims, or all the claims made

in his pleadings. Relinquishment of a portion of the claim is covered by

Order II R.2 sub-R.2 CPC. When he relinquishes all his claims, it is

abandonment of the suit. When he submits to the Court that his suit may be

dismissed because the dispute between him and the defendant has been

settled, it is neither admission, nor compromise, but abandonment of the suit,

the provision for which is made in Order XXIII R.1 CPC. Abandonment can

be either through positive submission or through silence leading to lapse. If

one allows his suit to go for default, that will be abandonment by silence. It

is also open to him to abandon the suit by making a direct request to the

Court after due appearance. By stating "not pressed", the plaintiff is actually

abandoning the suit. Admission is a unilateral act while compromise is a

bilateral act. An admission made by a defendant should always result in a

R.P.No.56 of 2022 in O.P.(C)No.980 of 2016

decree in favour of the plaintiff (unless there is a legal impediment) while a

compromise need not. Like admission, abandonment of a suit also is a

unilateral act, the result of which is dismissal of the suit. Holding so the

decision in Philomina Joseph (Supra) was overruled.

13. This Court is not sure whether the counsel has deliberately

or by mistake cited the decision in Philomina Joseph, which has been

overruled. I refrain from making any further comments, suffice it to say that

whether it is by mistake, deliberate or otherwise, it is quite unfortunate.

14. Now the question is, has the suit in this case been

compromised or decided solely on basis of the admission of the parties

without any investigation entitling the plaintiff to refund of one-half court

fees paid on the plaint as provided under Section 69 of the Act ? The answer

I am afraid will have to be in the negative. As per the endorsement seen in

Ext.P4-6, the parties have only consented for a decree relating to prayer 'A'

in the plaint. The endorsement makes it clear that the remaining disputes,

which include the relief sought for in prayer 'B' of the plaint relating to past

R.P.No.56 of 2022 in O.P.(C)No.980 of 2016

mesne profits of ₹25 lakhs, had not been given up as argued on behalf of the

petitioner before this Court. On the other hand, they agreed to relegate it to

be decided in the final decree proceedings. It is another matter that the court

below gave reliefs relating to the same also by Ext.P5 judgment, which has

become final also. The fact that the petitioner continued to claim the relief

relating to past mesne profits even after Ext.P5 judgment is quite clear from

the averments in the review petition, namely, Ext.P7, filed before the court

below as well as from the averments contained in the Original Petition filed

before this Court to which reference has already been made. A suit is not

disposed of by the mere passing of a preliminary decree. (Shub Karan

Bubna v. Sita Saran Bubna (2009)9 SCC 689; Bimal Kumar v.

Shakuntala Debi, (2012)3 SCC 548). The final decree proceeding is a

continuation of the preliminary decree proceeding and the suit comes to an

end only when a final decree is drawn. [Kattukandi Edathil Krishnan v.

Kattukandi Edathil Valsan: MANU/SC/0772/2022 : 2022 SCC Online

SC 737].

R.P.No.56 of 2022 in O.P.(C)No.980 of 2016

15. The suit in this case has not been compromised or decided

solely on the admission of the parties without any investigation as provided

under Section 69 of the Act and so the petitioner is not entitled to refund of

one-half court fee as prayed for. There is no error apparent on the face of the

record warranting a review in the judgment dated 01/11/2021 in O.P.(C) No.

980/2016.

In the result, the review petition is found to be without any

merits and hence the same is dismissed.

Sd/-

C.S. SUDHA JUDGE ami/