Kerala High Court
Philomina Joseph vs State Of Kerala on 29 January, 2009
Equivalent citations: AIR 2009 KERALA 109, 2009 (5) ALL LJ NOC 841, 2009 (4) AIR KAR R 573, 2009 A I H C (NOC) 585 (KER), (2009) 1 KER LJ 491, (2009) 1 KER LT 591, (2009) 2 ICC 75
Author: Koshy
Bench: J.B.Koshy, V.Giri
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 11028 of 2006(K)
1. PHILOMINA JOSEPH,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE EXECUTIVE ENGINEER,
For Petitioner :SRI.JOMY GEORGE
For Respondent : No Appearance
The Hon'ble the Acting Chief Justice MR.J.B.KOSHY
The Hon'ble MR. Justice V.GIRI
Dated :29/01/2009
O R D E R
J.B. Koshy, Ag.C.J. & V. Giri, J.
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W.P.(C) No.11028 of 2006 K
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Dated this, the 29th January, 2009 Judgment Koshy, Ag. C.J.:
A learned Judge of this Court referred the following question of law to be decided by a Division Bench:
"In a case where suit is dismissed as not pressed and there is no investigation, is the party entitled for refund of one-half of the court fee?".
In Peirce Leslie India Ltd. v. Kunheerium, 1978 KLT 711, it was held by a learned Single Judge that when the case is settled out of court and if the relief is not pressed, refund of court fee is not possible, as it is not an admission as contemplated under the Code of Civil Procedure and Evidence Act. In Aravindaksha Prabhu v. Shamsuddin, 2003 (1) KLT 644, a contrary view was taken by the learned Judge, who later referred the matter for authoritative pronouncement, as the decision in Peirce Leslie India Ltd.'s case was not cited before His Lordship earlier. The decision in Aravindaksha Prabhu's case was dissented by another learned Judge in Ramachandran Pillai v. Kerala Water Authority, 2006(1) KLT
784. Since different opinions were given in the above reported decisions, this question was referred to the Division Bench. WPC No.11028/06 - 2-
2. We may extract below Section 69 of the Kerala Courts Fees and Suit Valuation Act, (for short, "the Act") which governs the field.
"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 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 per Sec.4A or one-third of the amount of fee on memorandum of appeal as per S.52 has been paid by the parties.".
The above section provides for refund of court fee on two contingencies. (i) when the suit or appeal is compromised and (ii) when the suit is decided solely on the admission of parties without any investigation. We are only concerned with the second limb. Before answering the questions referred to by the learned Single Judge, we may consider the facts of the three cases mentioned in the reference order.
3. In Peirce Leslie India Ltd.'s case (supra), the petitioner filed a suit for recovery of certain amount under a promissory note executed by the defendant. The case stood posted WPC No.11028/06 - 3 - to 17.9.1976 The defendant was absent on that date and was declared ex parte. The suit was adjourned to 23.9.1976. On 23.9.1976, the Advocate for the plaintiff filed a statement stating that the suit has been settled out of court and therefore the suit may be dismissed as settled on plaintiff's admission without taking any evidence and that half court fee may be refunded under Section 69 of the Kerala Court Fees Act. Following the dismissal of the suit, the plaintiff moved for refund of half of court fee which was rejected by the lower court. The plaintiff filed a Civil Revision Petition before this Court. The learned Judge was of the opinion that only when the suit is decreed on the admission of the plaint claim by the defendant or admission by the plaintiff of the claim in the counter claim of the defendant, it can be stated that the suit was disposed of on the basis of the admission of parties and occasion to refund the court fees arises under Section 69 of the Act. Learned Judge has also referred to Order XII, Rule 1 of the Code of Civil Procedure, before it was amended in 1976, and held that, admission should be understood in the same sense as it is used in Civil Procedure Code and Section 19 of the Evidence Act and when the suit is not decreed on the admission on the defendant, the court fee cannot be refunded under Section 69 of the Act.
WPC No.11028/06 - 4-
4. In Aravindaksha Prabhu's case (supra), a contrary view was taken. Learned Judge held that admission mentioned in Section 69 of the Act should be understood in the ordinary sense and it is not necessary to go into Section 19 of the Evidence Act to ascertain whether statement of the plaintiff before the court that he does not want any relief against the defendant is an admission or not. It was also held that where the plaintiff makes a statement that he does not want any relief, it is an admission of the plaintiff that he has no case, and since the case was decided without any investigation, Section 69 is applicable. Learned Judge also referred to the decision of Marthoma Rubber Company v. Union Bank of India, 1987 (1) KLT 525, to support the proposition that admission can be made after framing of issues. Therefore, learned Judge held that if the plaintiff makes a statement that he does not want any relief and the suit is dismissed without any investigation, it will be a case of suit being decided on the basis of admission of plaintiff without any investigation and consequently one-half of the court fee has to be refunded. The decision in Aravindaksha Prabhu's case was dissented by another learned Judge in Ramachandran Pillai's case (supra). In that case, there was no admission by the plaintiff. The suit was instituted by the appellant-plaintiff as an indigent WPC No.11028/06 - 5 - person obtaining permission of the court. The defendant entered appearance in the suit and filed written statement also. Thereafter the suit was dismissed as not pressed and later it was again restored on an application vide I.A.374 of 1998. Thereafter the suit was withdrawn with liberty to file fresh suit vide order on I.A. 375 of 1998. It was while withdrawing the suit with leave to file fresh suit, the trial court directed that a copy of the copy be forwarded to the District Collector for realisation of court fee. Since the suit was withdrawn with liberty to file fresh suit, there was no admission by the plaintiff regarding his claim and therefore the facts of that case was entirely different. Since the ratio in Aravindaksha Prabhu's case is not applicable on the above point, there is no reason for dissenting with the judgment in Aravindaksha Prabhu's case as in that case the suit was dismissed on the admission of the plaintiff, whereas here the suit was dismissed without prejudice to the right of the plaintiff in filing a fresh suit. In Aravindaksha Prabhu's case, plaintiff cannot file a fresh suit on the same cause of action. There is an implied admission regarding the claim if the suit is dismissed as not pressed and in such cases, the plaintiff cannot file a fresh suit on the very same cause of action and it is binding on him; whereas when the suit is withdrawn without prejudice to file a WPC No.11028/06 - 6- fresh suit, on the very same cause of action he can file another suit. By submitting that he is not pressing a relief, plaintiff relinquishes that part of the claim and he cannot file a fresh suit for that claim.
5. Rule 2 (2) of Order 2 of the Code of Civil Procedure reads as follows:
"2(2). Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.".
In this connection, we may also refer to the decision of the Apex Court in Ladu Ram v. Ganesh Lal, (1999) 7 SCC 50. The policy of the State is to reduce the number of litigation by settlement through Alternate Disputes Resolution (ADR) mechanism. Section 69 of the Court Fees Act is a welcome step in that direction. As the number of cases have increased, it is the duty of the court to encourage settlement out of court. If the case is decided after investigation, more time would have to be spent by the court. Section 69 of the Act encourages such a situation. By admission of parties if the case can be decided, the precious time of the court is saved and more contested cases can be disposed of. After filing of the plaint when the defendant files the written statement, if the plaintiff understands that he has no claim and thereafter withdraws the case as not WPC No.11028/06 - 7 - pressed or if they mutually discuss and settle the case out of court, plaintiff can admit before the court that relief prayed need not be granted and suit can be disposed of on admission. A purposive and progressive interpretation is necessary. The intention of the Legislature is primarily to be gathered from the language used and "the words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise"
as held by the Apex Court in Kanai Lal Sur v. Paramnidhi Sadhukhan, (AIR 1957 SC 907). As observed by Justice Shah in New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar, (AIR 1963 SC 1207,at p.1213), "..It is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the Legislature". Reference to other statutes is necessary only if the meaning of the word is not clear or ambiguous. Here literal or popular meaning of the word 'admission' as adopted in Aravindaksha Prabhu's case (supra) is harmonious with the object which the legislature has in view while enacting Section 69 of the WPC No.11028/06 - 8- Act. Such a reasonable interpretation avoids injustice also. The purpose for which the section was enacted cannot be ignored as held by the Supreme Court in M/s.Sneh Enterprises v. Commissioner of Customs, New Delhi (2006 AIR SCW 4684, at para 23 and 24). In Chairman, Indore Vikas Pradhikaran v. M/s.Pure Industrial Cock & Chem. Ltd. and others, (2007 AIR SCW 4387), it was held as follows:
"88. For construing a statute of this nature, we are dealing with, rule of purposive construction has to be applied.
89. In Francis Bennion's Statutory Interpretation, purposive construction has been described as under: "A purposive construction of an enactment is one which gives effect to the legislative purpose by --
(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive and literal construction), or
(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive and strained construction),"
90. In Maruti Udyog Ltd. v. Ram Lal and Others [(2005) 2 SCC 638], while interpreting the provisions of Industrial Disputes Act, 1947, the rule of purposive construction was followed.
WPC No.11028/06 - 9 -
91. In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. [(1987) 1 SCC 424], this Court stated:
"..... If a statute is looked at in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. . . . ."
92. In 'The Interpretation and Application of Statutes' by Reed Dickerson, the author at p.135, has discussed the subject while dealing with the importance of context of he statute in the following terms:
"..... The essence of the language is to reflect, express, and perhaps even affect the conceptual matrix of established ideas and values that identifies the culture to which it belongs. For this reason, language has been called "conceptual map of human experience".
[See also High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712, Indian Handicrafts Emporium and Others v. Union of India and Others, (2003) 7 SCC 589 and Deepal Girishbhai Soni and Others v. United India Insurance Co. Ltd., Baroda (2004) 5 SCC 385, para 56]".
Purposive construction can be adopted even if we adopt traditional principles of interpretation known as Mimansa rules of interpretation (See, Surjit Singh v. Mahanagar Telephone Nigam Ltd. WPC No.11028/06 - 10- (2008 AIR SCW 3231, paras 23 to 57).
6. Maxwell, while explaining the maxim, 'Construction ut res magis valeat quam pereat' interpreted as follows:
"If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that the Parliament would legislate only for the purpose of bring about an effective result. Where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system".
The word 'admission' in the section is to be interpreted in its ordinary sense and a narrower interpretation is not warranted. If the plaintiff files the case and then admits that the case is not maintainable and is not pressed, and the Judge passes the judgment without any investigation, it would squarely come under the above section. Learned Judge in Peirce Leslie India Ltd's case (supra) WPC No.11028/06 - 11 - took a restricted meaning in view of the unamended provisions of Order XII, Rules 1 and 6 of CPC as well as Section 19 of the Evidence Act. But those provisions are not indicative that the normal meaning of 'admission' shall be restricted in any sense. Order XII, Rule 1 even though speaks that any party to a suit may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party, it cannot be stated that there is any prohibition in the very same party stating that his case pleaded is admittedly not correct and is not pressing that plea in the context of Section 69 of the Court Fees Act. Rule 6(1) of Order XII, CPC, as amended in 1976 reads as follows:
"6. Judgment on admission.- (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
xxxx xxx xxx".
It only says that the court can make such order or give such judgment, either on the application of parties or of its own motion, WPC No.11028/06 - 12- on the basis of admissions made in the pleading or otherwise, whether orally or in writing, at any stage of the suit. That is also not a bar for the plaintiff admitting about the unsustainability of his claim and not pressing the suit.
7. Now we come to Section 17 of the Evidence Act. Section 17 reads as follows:
"17. Admission.- An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.".
It only shows that by oral or documentary expression or by very conduct, admission can be made by a party.
Section 19 of the Evidence Act, reads as follows:
"19. Admission by persons whose position must be proved as against party to suit.- Statements made by persons whose position or liability it is necessary to prove as against any party to the suit, are admissions, if statements would be relevant as against such persons in relation to such position or liability in a suit brought by or against them, and if they are made whilst the person making them occupies such position or is subject to such liability.".
An express or implied admission can also be taken as admission. WPC No.11028/06 - 13 - An admission can be made by conduct. An admission is a statement, oral or written, suggesting any inference as to any fact or relevant or deemed to be relevant to any such fact made by or on behalf of any party to any proceedings. None of the provisions of the Evidence Act give a restricted or a narrower meaning to 'admission', but admission should be specific and unconditional. It is true that when a person withdraws the suit without prejudice to filing any fresh suit on the very same claim, there is no admission by him regarding the merits of the claim. When he says that the suit is not pressed, he is admitting that he has no case and binds himself by way of Order II, Rule 2 CPC and it is certainly an admission and since the suit is decided without any investigation, Section 69 of the Act correctly applies. Therefore, we are of the view that the decision of the learned Single Judge in Aravindaksha Prabhu's case, 2003 (1) KLT 644 is the correct view and, the view in this regard expressed in Peirce Leslie India Ltd. v. Kunheerium, 1978 KLT 711, is overruled.
8. In this case, the suit was filed for realisation of a certain amount from the respondent/defendant. Before starting evidence, the petitioner filed a memo to the effect that the suit is not pressed. She also applied for refund of court fee. The suit was WPC No.11028/06 - 14- dismissed as not pressed. Since there was no order to refund court fee, petition was filed to refund the court fee. That was dismissed following the dicta in Peirce Leslie India Ltd.'s case (supra). Since that decision is overruled, petitioner is entitled to refund of 50% of court fee paid in accordance with Section 69 of the Court Fees Act. Accordingly, the writ petition is allowed with consequential reliefs.
Sd/-
J.B. Koshy Acting Chief Justice.
Sd/-
V.Giri, Judge.
dk.