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Madhya Pradesh High Court · body

1985 DIGILAW 474 (MP)

SURESH KUMAR v. STATE

1985-12-04

RAM PAL SINGH

body1985
RAM PAL SINGH, J. ( 1 ) THE appellant has challenged that part of the order passed by the Additional Judge to the Court of District Judge, Shivpuri, in Civil Appeal No. 30-A of 1983 dated 25-3-1985, by which he has been refused the refund of the Court-fees, as provided in S. 13 of the M. P. Court-fees Act, 1870. ( 2 ) THE short facts out of which this appeal arises, are that the appellant filed a suit against the respondents in the Court of Second Civil Judge Class II, Shivpuri, being Civil Suit No. 104a of 1982. On 5-1-1983 this suit was dismissed. The appellant preferred an appeal in the Court of the Additional District Judge, Shivpuri. That appeal was disposed of by the first appellate Court and in paras 10 and 11 of the impugned judgment, the appellate Court framed 3 issues, quashed the judgment and decree passed by the trial Court and passed a wholesome remand order directing the trial Court to record the evidence of the parties on the issues according to law. It was also directed that the parties shall be at liberty to make amendments in their respective pleadings and adduce evidence. It was, thus, clearly a wholesome remand order. The appellant is not aggrieved by this order. He is aggrieved by the order passed by the first appellate Court in Para 14 of the impugned judgment. ( 3 ) IN Para 14 of the impugned judgment, the appellate Court has observed that as the plaintiff-appellant has not filed any application before the trial Court for framing correct issues, he is not entitled for the refund of the Court-fees under S. 13 of the M. P. Court-fees Act, 1870 (for short, hereinafter referred to as 'the Act' ). This part of the order passed by the appellate Court is prima facie incorrect. It is the duty of the Court, after perusal of the pleadings of the parties, to frame the issues. If there is any defect in framing of the issues, and any of the parties does not pray for correction, addition or substitution of the issues, then that party cannot be penalised by a Court of law. The penalty imposed by the learned first appellate Court deserves to be set aside. ( 4 ) LEARNED counsel appearing for the State, Ku. The penalty imposed by the learned first appellate Court deserves to be set aside. ( 4 ) LEARNED counsel appearing for the State, Ku. Shanti Shrivastava, has contended that as the remand order is passed under R. 23 of O. XLI, C. P. C. , the Court-fee paid in the appellate Court cannot be directed to be refunded under S. 13 of the Act. According to the Amendment Act of 1976, another provision has been added as S. 23-A in the Code of Civil Procedure. It is being reproduced, for convenience, below: -"23-A. Remand in other cases.- Where, the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under R. 23. "the distinction between the power of remand under R. 23 and R. 23-A is very clear. No order of remand can be made under R. 23 unless the trial Court has disposed of the whole suit, and not a portion of it, an a preliminary point and the appellate Court reverses the decree in appeal. R. 23-A will come in when the trial Court has disposed of the entire case otherwise than on a preliminary point and that decree is reversed in appeal and a re-trial is considered necessary. In that contingency the appellate Court will have all the powers mentioned in R. 23 of the Code. In view of this clear distinction, it is very much apparent that the remand order made by the appellate Court is covered by R. 23-A of O. XLI, C. P. C. My this view is further strengthened by a judgment of the Supreme Court in the case of State of U. P. v. Chandra Bhushan Misra, AIR 1980 SC 591 . ( 5 ) S. 13 of the Act is being reproduced below for the sake of convenience:"13. if a suit is remanded in appeal, on any of the grounds mentioned in S. 351 of the same Code for a second decision by the lower Court, the appellate Court shall grant to the appellant a certificate authorising him to receive back from the Collector the full amount of fee paid on the memorandum of appeal. if a suit is remanded in appeal, on any of the grounds mentioned in S. 351 of the same Code for a second decision by the lower Court, the appellate Court shall grant to the appellant a certificate authorising him to receive back from the Collector the full amount of fee paid on the memorandum of appeal. "this provision makes it abundantly clear that if a suit is remanded in appeal on any of the grounds mentioned in S. 351 of the Code (now S. 23 and S. 23-A) for a second decision by the lower Court, the appellate Court shall grant to the appellant a certificate authorising him to receive back from the Collector the full amount of fee paid on the memorandum of appeal. When the appellate Court remanded the case for complete re-trial, it was the bounden duty of the appellate Court to grant the said certificate to the appellant authorising him to receive back from the Collector the full amount of Court-fees paid on the memorandum of appeal. This provision of the Court-fees Act is enacted with a view that when a re-trial is ordered by the appellate Court and the case is remanded to the trial Court for complete re-trial, then the Court-fees paid by the appellant should not be withheld as a measure of penalty, the reason being that now for the second time if the party becomes aggrieved by the judgment and decree of the trial Court, then it shall have to file an appeal again in the appellte Court and then he shall be required to pay the Court-fees again. Thus, if the Court-fee is not returned, he will have to pay Court-fee twice for getting one justice. This double jeopardy, which will be caused to the party, is not only against the principles of equity and justice but is also against the principles of law. Ku. Shanti Shrivastava, learned counsel for the State, has placed for reliance in the case of Kishan Sarup, AIR 1975 Punj and Har 22. This judgment rather favours the appellant, than the party which has cited it. ( 6 ) THIS appeal is, therefore, allowed and the order passed in the impugned judgment in Para 14 is set aside. Ku. Shanti Shrivastava, learned counsel for the State, has placed for reliance in the case of Kishan Sarup, AIR 1975 Punj and Har 22. This judgment rather favours the appellant, than the party which has cited it. ( 6 ) THIS appeal is, therefore, allowed and the order passed in the impugned judgment in Para 14 is set aside. The appellate Court is directed to grant a certificate to the appellant authorising him to receive back from the Collector the full amount of Court-fee paid by him in the memorandum of appeal in that Court. However, there shall be no order as to costs. Appeal allowed. .