Case Note & Summary
The petitioner, Maruti Narsappa Kore, was the original plaintiff in Special Civil Suit No.485 of 1997 filed against respondent no.1 for damages of Rs.4,50,400 for malicious prosecution. The defendant appeared and filed a written statement. Issues were framed, and one issue regarding limitation was to be heard as a preliminary issue. After submissions were advanced twice, on 8th July 1998, the petitioner filed a pursis to withdraw the suit. The suit was allowed to be withdrawn with a direction that court fees be refunded as per rules. Subsequently, a certificate for refund of court fees was being granted. Respondent no.1 filed an application on 11th September 1998 pointing out that the rules did not permit refund. The trial court held that refund was governed by Item No.3 of Notification No.CFA 1056/III, d/18-1959, under section 43 of the Bombay Court Fees Act, 1959, which allows refund of two-thirds court fees for a suit withdrawn unconditionally by the plaintiff before settlement of issues or recording of any evidence as settled out of Court. The trial court, relying on Lalit J. Patel v. T.R. Bhide, 1970 Mh.L.J. 759, held that since issues had already been settled, the petitioner was not entitled to refund. The petitioner argued that the suit was withdrawn before recording of evidence, so he should get refund. The respondent countered that the issue was settled in Lalit Patel. The High Court examined the provision and the precedent, noting that in Lalit Patel, evidence had been led on a compromise application but the suit was settled before conclusion of hearing. The court interpreted Item No.3 to mean that the phrase 'as settled out of Court' applies to both conditions: 'before settlement of issues' and 'before recording of any evidence'. Therefore, once issues are framed, the condition 'before settlement of issues' is not met, and the alternative condition 'before recording of any evidence' is also not available because the suit must be settled out of Court, which was not the case here as the suit was withdrawn unconditionally. The High Court found no error in the trial court's order and dismissed the writ petition.
Headnote
A) Court Fees - Refund of Court Fees - Withdrawal of Suit - Item 3 of Notification under Section 43 of Bombay Court Fees Act, 1959 - The petitioner filed a suit for damages for malicious prosecution and withdrew it after issues were framed but before evidence was recorded. The trial court refused refund of court fees relying on Lalit J. Patel v. T.R. Bhide, 1970 Mh.L.J. 759, which held that once issues are settled, the condition 'before settlement of issues' is not satisfied, and the alternative condition 'before recording of any evidence' does not apply because the phrase 'as settled out of Court' qualifies both conditions. The High Court upheld the trial court's order, dismissing the writ petition. (Paras 1-5)
Issue of Consideration
Whether the petitioner is entitled to refund of court fees under Item 3 of the Notification under Section 43 of the Bombay Court Fees Act, 1959 when the suit was withdrawn after framing of issues but before recording of evidence.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order refusing refund of court fees.
Law Points
- Refund of court fees under Item 3 of Notification under Section 43 of Bombay Court Fees Act
- 1959 is not available if issues have been framed before withdrawal of suit
- even if no evidence has been recorded.
