Court Fee Cannot Be Waived Post Merits Adjudication | Kerala High Court Upholds Legal Bar On Trial Court Fee Waiver Despite Mediation
Isabella Mariam
The High Court of Kerala Single Bench of Justice A. Badharudeen held that while a court fee waiver may be granted in appeals filed in forma pauperis pursuant to a compromise, the same relief cannot be extended to court fees ordered after adjudication of the original suit. The court directed that the decree and judgment of the trial court be set aside in light of a compromise between the parties, but declined the request to waive court fee payable before the trial court. The court further ordered that the compromise agreement, excluding the clause requesting trial court fee waiver, shall form part of the appellate decree.
The case arose from two Regular First Appeals—RFA No. 531 of 2009 and RFA No. 243 of 2016—filed before the Kerala High Court by the plaintiffs in two original suits decided by the Additional Sub Court, Kochi. Both suits had been instituted by Thankamany and her son Natarajan, residents of Thoppumpady Village, Kochi Taluk. The defendants in both suits were officials and the parent body of the Kerala State Electricity Board (KSEB), represented by the Assistant Executive Engineer, Executive Engineer, and the Board's Secretary.
The original suits stemmed from a dispute involving alleged negligence leading to damages, the details of which were adjudicated upon by the Sub Court. The trial court dismissed the plaintiffs' claims and ordered them to pay the prescribed court fee, even though they had initiated the litigation as indigent persons. Both plaintiffs had been permitted by the trial court to file the suits in forma pauperis and were later granted similar status for the purpose of appeals by orders passed in CMCP Nos. 1 and 92 of 2008.
During pendency of the appeals, the matters were referred to mediation. The parties—namely the appellants and the Assistant Executive Engineer of KSEB representing all respondents—entered into compromise agreements, which were filed before the High Court in both cases.
Clause No. 5 of the compromise agreement in both appeals specifically requested the court to waive the court fee directed to be realised by the trial court, arguing that since the parties had settled the matter, the fee should not be recoverable. The appellants’ counsel contended that such waiver was justified by precedent, particularly referencing the decision in Kochupailo v. Reena & Ors., [2015(1) KHC 361], where court fee was not recovered from indigent litigants following an out-of-court settlement.
Additionally, reliance was placed on Santha & Ors. v. Kerala State Electricity Board, TVM & Ors., [2020 (3) KHC 294], where the High Court allowed waiver of appellate court fees under compassionate circumstances and due to the proven financial incapacity of the appellants, who were victims of a fatal electrocution incident involving a family member.
However, the respondent’s position remained focused on the statutory limitations under the Kerala Court Fees and Suit Valuation Act, particularly Sections 69 and 69A, which provide for refund of court fees only under specific procedural circumstances, such as compromises under Section 89 of the Code of Civil Procedure or decisions based on party admissions.
The High Court stated “when suits and appeals filed by indigent person/s are compromised, realisation of court fee shall be avoided since the same is otherwise refundable taking into account of the compromise.” The court clarified that this principle applies where the compromise precedes a final adjudication on merits.
In assessing the legality of clause No. 5 of the compromise, the court posed the central question: “whether it is legally permissible for an appellate court to waive payment of court fee before the trial court on account of settlement of the appeal/appeals?”
It was “recorded” by the court that under the Kerala Court Fees and Suit Valuation Act, “there is no provision…permitting refund of court fee paid before the trial court by the plaintiff or the defendant as the case may be, and also to waive realisation of court fee payable before the trial court while suing as indigent persons after disposal of the case on merits after adjudication by the intervention of the appellate court.”
The court distinguished the earlier relied-upon decisions by noting that in Santha & Ors., the waiver applied only at the appellate stage, and no direction was given regarding trial court fees post-adjudication. The bench also maintained that the indigent status granted during the trial and appeal stages did not automatically negate the statutory obligation for court fee recovery once the suit was adjudicated and dismissed.
As such, the legal position remains that “after disposal of the suits on merits by a common judgment, the trial court ordered for realisation of court fee”, and there exists no enabling provision to override that order based on a subsequent appellate compromise.
Justice A. Badharudeen delivered a ruling in which he stated that all clauses of the compromise agreement submitted in both RFA No. 531 of 2009 and RFA No. 243 of 2016 would be accepted, with the exception of clause No. 5, which sought a waiver of the trial court fee.
In his pronouncement, the court declared that the decree and judgment from both the appellate court and the trial court would be set aside, and that both appeals were allowed in accordance with the terms of the compromise.
Additionally, the High Court instructed that the signed compromise should become a part of the appellate decree.
With regard to the appeal court fees, the court clearly recorded that the court fee payable in both appeals would not be collected, even though the appeals had been filed as indigent.
Finally, the Registry was instructed to forward a copy of the common judgment to the trial court without delay, so that the court fee payable before the trial court could be realized.
Advocates Representing the Parties
For the Petitioners: Sri. R. Sudhish, Smt. M. Manju, Advocates
For the Respondents: Shri. P.A. Ahamed, Standing Counsel, Kerala State Electricity Board; Sri. Pulikool Abubacker, Standing Counsel, KSEB; Shri. B. Premod, Standing Counsel, KSEB
Case Title: Thankamany & Anr. v. Asst. Executive Engineer, KSEB & Ors.
Neutral Citation: 2025:KER:34471
Case Numbers: RFA No. 531 of 2009 and RFA No. 243 of 2016
Bench: Justice A. Badharudeen
[Read/Download order]
