Ashok Diwan & Anr. v. Subhash Diwan & Ors.

1. By this application, the plaintiff seeks refund of the court fees paid on the plaint in terms of Section 16A of the Court Fees Act, 1870 as amended for the State of Delhi.

2. The plaintiff had filed the suit seeking a decree of permanent injunction thereby restraining the defendants from transferring or alienating the suit property bearing No. 14/475, Sunder Vihar, New Delhi.

3. After the suit was filed by the plaintiff, the defendants filed a 2017:DHC:6035 suit being CS(OS) No. 2229/2011 seeking partition of the subject property.

4. On 26.11.2012, the present suit was disposed of noticing that in the suit for partition filed by the defendant by order dated 16.09.2011 a consent was given by the parties that they shall maintain status quo with regard to title and possession of the subject property during the pendency of the suit for partition.

5. Noticing the fact that the parties had agreed to maintain status quo with regard to title and possession of the subject property, this Court was of the view that the present suit for injunction filed by the plaintiff had become surplusage and could be disposed of in light of the directions given by the Court vide order dated 16.09.2011 that the parties shall maintain status quo with regard to title and possession of the subject property. The suit was accordingly disposed of.

6. Subsequent to the disposal of the present suit, it is contended that a settlement was arrived at between the parties leading to disposal of the Suit for partition filed by the defendants.

7. Learned counsel for the plaintiff contends that since the present suit was initially consolidated with the suit for partition and the suit for partition has been disposed of on a settlement being arrived between the parties, the present suit is also deemed to have been settled and accordingly plaintiff is entitled to refund of appropriate court fees in terms of Section 16A of the Court Fees Act.

8. Section 16A of the Court Fees Act reads as under: “16A. Refund of fees on settlement before hearing- Whenever by agreement of parties-

(i) any suit is dismissed as settled out of Court before any evidence has been recorded on the merits of the claim; or

(ii) any suit is compromised ending in a compromise decree before any evidence has been recorded on the merits of the claim; or

(iii) any appeal is disposed of before the commencement of hearing of such appeal; half the amount of all fees paid in respect of the claim or claims in the suit or appeal shall be ordered by the Court to be refunded to the parties by whom the same have been respectively paid.”

9. Reading of Section 16(A) shows that the parties are entitled to refund of court fees if a suit is dismissed as settled out of court before any evidence is recorded on the merits of the claim or a suit is compromised ending in a compromise decree before any evidence has been recorded.

10. The present suit was disposed of on 26.11.2012 not on account of any settlement or compromise being entered between the parties but on account of the fact that parties had agreed to maintain status quo pending the suit for partition and accordingly the present suit was held to become surplusage.

11. It is an admitted position that on the date when this suit was disposed of i.e. on 26.11.2012 there was no settlement or compromised between the parties. The settlement and/or compromise between the parties was entered into on a later date.

12. In my view, since the present suit was not disposed of as settled or compromised between the parties, it would not be covered by the provision of Section 16(A) of the Act and accordingly the plaintiff would not be entitled to refund of the court fees paid on the plaint.