Joy Varghese vs State of Kerala

Pius C. Kuriakose, J.—A learned Judge of this Court (K.A.Mohammed Shafi, J.) dismissed the appeal L.A.A. No. 788 of 1999 filed by the petitioner observing that the appellant has not produced any evidence to establish that the properties comprised in Exts.A1 and A2 (two items of evidence relied on by the appellant) are similar and similarly situated or comparable to the property acquired in the appellant''s case. The appellant filed Review Petition No. 593 of 2003 complaining that there was evidence enough on record to show that the appellant''s properties were comparable and similar to the properties comprised in Exts.A1 and A2 and therefore the judgment passed by K.A. Mohammed Shafi, J. is vitiated by errors apparent on the face of the record. The Review Petition was considered by another learned Judge of this Court (A. Lekshmikutty, J.) who not only admitted the Review Petition but also allowed the same holding that there was evidence on record to hold that the appellant''s properties were comparable to the properties covered by Exts.A1 and A2. In other words the appellant''s plea that the judgment of K.A. Mohammed Shafi, J. was vitiated by errors apparent on the face of the record was upheld by the learned Judge who considered and decided the Review Petition. In the instant I.A. Mr. Alias M. Cherian, learned counsel for the petitioner-appellant seeks refund of the court fee paid on the Memorandum of Review Petition. Learned counsel refers to Section 66 of the Kerala Court Fees and Suits Valuation Act, 1959 which reads as follows:

"Refund where Court reverses or modifies former decision on ground of mistake:

Where an application for a review of judgment is admitted on the ground of some mistake or error apparent on the fact of the record, and on the rehearing the Court reverses or modifies its former decision on that ground, it shall direct the refund to the applicant of so much of the fee paid on the application as exceeds the fee payable on any other application to such Court under Article 11 (g) and (t) of Schedule II."

Having gone through the Memorandum of Review and the judgment after review as well as the judgment which was sought to be reviewed, I find force in the submission of the learned counsel. The fees payable on applications under Article 11(g) and (t) of Schedule II is only Rs. 10/-. The total court fee paid on the Memorandum of Review Petition is Rs. 2093/-. The petitioner is entitled for refund of Rs. 2083/- on the express terms of Section 68. Refund the court fee paid on the Memorandum of Review Petition to the extent of Rs. 2083/-.

The I.A. is allowed as above.