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2010 DIGILAW 178 (CHH)

BRIJ MOHAN DUA v. SALAJ KUMAR

2010-07-05

PRASHANT KUMAR MISHRA

body2010
ORDER 1. Learned counsel for the applicant is heard on admission. 2. The applicant is aggrieved by the order dated 25/01/2005 passed by the 4th Additional District Judge, Bilaspur in MJ.C. No. 97/2004. By the said order, the Appellate Court has dismissed applicant's application under Section 13 of the Court Fee Act, 1870 read with Section 151 of CPC seeking refund of the amount of court fee paid by the applicant with the memo of appeal in civil appeal No.60-A/99, which was decided on 14/07/2000. 3. The facts of the case in short is that the applicant/plaintiff filed a suit for mandatory injunction against the respondent/defendants. The said Suit was dismissed by the trial court after full trial by its judgment and decree dated 23/12/97. The plaintiff thereafter preferred an appeal bearing civil appeal No. 60-A/99 in the court of 6th Additional District Judge, Bilaspur. The civil appeal was decided on 14/07/2000 and the matter was remanded back to the trial court for fresh decision. 4. In the appellate judgment it has been mentioned in para 7 that the trial court had framed seven issues and upon appreciation of the evidence submitted by both the parties the trial court dismissed the suit after holding that the plaintiff had no right to sale the debris to the defendant No.1, therefore sale of the said debris is void and that the plaintiff had not valued the suit properly. The appellate court permitted the plaintiff to make some amendment in the plaint and remanded the matter for a retrial. 5. After this appellate order of remand passed on 14/07/2000, the applicant moved an application for refund of court fee on 21/07/2000. 6. Learned counsel for the applicant submits that the applicant is entitled to refund of court fee under Section 13 of the Court Fee, Act, 1870. 7. On the other hand, learned counsel for the respondent No.4 submits that there is no error in the impugned order and refund of court fee cannot be allowed. 8. 6. Learned counsel for the applicant submits that the applicant is entitled to refund of court fee under Section 13 of the Court Fee, Act, 1870. 7. On the other hand, learned counsel for the respondent No.4 submits that there is no error in the impugned order and refund of court fee cannot be allowed. 8. Section 13 of the Court Fee Act is reproduced herein for ready reference: "Refund of fee paid on memorandum of appeal.-If an appeal or plaint, which has been rejected by the lower Court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received, or if a suit is remanded in appeal, on any of the grounds mentioned in section 351 of the same Code, for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate, authorizing him to receive back from the Collector the full amount of fee paid on the memorandum of appeal: Provided that, if in, the case of a remand in appeal, the order of remand shall not cover the whole of the subject-matter of the suit, the certificate so granted shall not authorize the appellant to receive back more than so much fee as would have been originally payable on the part or parts of such subject-matter in respect whereof the suit has been remanded." 9. Under the above provision refund of court fee can be ordered: (a) When the appeal or plaint has been rejected by the lower court on any of the grounds mentioned in the Code of Civil Procedure, and is ordered to be received by the appellate court. (b) Or if a suit is remanded in appeal, on any of the grounds mentioned in section 351 of the Code of Civil Procedure which is now incorporated as Order 41 Rule 23 of the Code of Civil Procedure, for a second decision by the lower court. 10. In the present case, the suit filed by the applicant was decided by the trial court on merits after framing seven issues and after recording evidence of the parties. The suit/plaint was thus not rejected by the trial court on any technical ground mentioned in the Code of Civil Procedure, but was decided I on merits after a regular trial. 11. The suit/plaint was thus not rejected by the trial court on any technical ground mentioned in the Code of Civil Procedure, but was decided I on merits after a regular trial. 11. In the first part of section 13 of Court Fee Act, it is mentioned that when the plaint is rejected by the trial court on any of the grounds mentioned in the CPC is ordered to be received, meaning thereby that the first contingent for refund of court fee would arise when the plaint has been rejected by the trial court on any technical ground and the appellate court orders that the plaint be received. The second contingent for refund of court fee would arise when a suit is remanded in appeal on any of the grounds mentioned in section 351 of the CPC for a second decision by the labour court (section 351 of the old CPC is now incorporated as Order 41 Rule 23 of CPC). Thus refund of court fee can be allowed under this part when the suit has been dismissed by the trial court on preliminary point and the decree is reversed in appeal. However, that is not the case in the present suit. The suit filed by the applicant was decided on merit and was not on a preliminary point. 12. The High Court of M.P. in the matter of Radhakishan Biharilal Vs. Mohanlal Radhakrishnaji and othersl has held that when the order of remand has been made by the appellate court in exercise of powers under Order 41 Rule 23-A of CPC, the provisions of refund of court fee under section 13 of the Court Fee Act is not applicable. 13. Learned counsel for the applicant has relied on a judgment of M.P. High Court in case of Suresh Kumar Chowkse Vs. State of M.P. and another2 and in the matter of Kohinoor Feed Mills, Gwalior Vs. State of M.P. and others3 . 14. In yet another judgment passed by the High Court of M.P in AIR 1983 M.P. 110 a similar view has been taken as has been held in the matter Radhakishan Biharilal Vs. Mohanlal Radhakrishnaji and others1 (supra). 15. It appears that the latter decisions of the M.P. High Court in Suresh Kumar Chowkse Vs. State of M.P. and another2 and Kohinoor Feed Mills, Gwalior Vs. Mohanlal Radhakrishnaji and others1 (supra). 15. It appears that the latter decisions of the M.P. High Court in Suresh Kumar Chowkse Vs. State of M.P. and another2 and Kohinoor Feed Mills, Gwalior Vs. State of M.P. and others3 have not considered the earlier judgment of the M.P. High Court in case of Mis Kiran Electricals Vs. State Bank of Indore and another4. The judgment of Kohinoor Feed Mills, Gwalior Vs. State of M.P. and other3 is of the year 1998 and yet while deciding the issue, the High Court of M.P. has not considered two earlier decisions in the case of M/s Kiran Electricals Vs. State Bank of Indore and another4 (supra) and Radhakishan Biharilal Vs. lUohanlal Radhakrishnaji and othersl (supra). It is also to be noted that the judgment in the matter of Mis Kiran Electricals Vs. State Bank of Indore and another4 (supra) has been delivered by a Division Bench, whereas the judgments relied by the counsel for the applicant is delivered by Single Bench. 16. Since there is divergence of opinion in the judgment rendered by the High Court of M.P. on four different occasions, two earlier decisions holding that in case when the order of remand is by the appellate 'court under Order 41 Rule 23-A of CPC refund of court fee cannot be ordered and two subsequent decisions without considering the earlier decisions to the effect that even in such a case refund of court fee can be ordered, this court after anxious consideration respectfully disagrees with the view taken by the High Court of M.P. in cases Suresh Kumar Chowkse Vs. State of M.P. and another2 (supra) and Kohinoor Feed Mills, Gwalior Vs. State of M.P. and others3 (supra) and would follow the judgment in the matter of M/s Kiran Electricals Vs. State Bank of Indore and another4 (supra) and Radhakishan Biharilal Vs. Mohanlal Radhakrishnaji and others• Even otherwise, this court has examined the powers conferred on the court for refund of court fee under section 13 of the Court Fee Act, 1870 and this court is independently of the opinion that the two contingencies, wherein refund of court fee can be ordered are not available in the present case and for this reason also the refund of court fee cannot be ordered. 17. 17. A copy of the judgment and decree passed by the first appellate court on 14/07/2000 has been supplied by learned counsel for the applicant, the same is taken on record. 18. There is no error of law or material irregularity in exercise of jurisdiction committed by the court below while rejecting the prayer for refund of court fee. 19. In view of the above, instant Civil Revision fails and is hereby dismissed. Revision Dismissed.