Judgment Heard Mr. SK Ghosh, learned counsel for the appellant and Mr. LP Sharma, learned counsel for the respondent. This appeal is filed under Order 43, Rule 1(c) by the plaintiff of Title Suit No. 33/2007 against the order dated 5.9.2013 passed by Civil Judge No.1, Cachar, Silchar in Misc. Case No. 26/2009. By impugned order, learned Civil Judge No.1, Cachar, Silchar dismissed the application filed by the plaintiff under Order 9, Rule 9 read with Section 151 of the C.P. Code and declined to restore the civil suit which was dismissed for want of prosecution on 22.5.2009. So the short question that arises for consideration in this appeal is whether learned Civil Judge was justified in dismissing the application filed by the plaintiff (appellant herein) under Order 9, Rule 9 C.P. Code and thereby was justified in declining to restore the civil suit which was dismissed for want of prosecution by order dated 22.5.2009. Having heard the learned counsel for the parties and upon perusal of the record of the case, I am constrained to allow the appeal and while setting aside of the impugned order, allow the application filed by the plaintiff under Order 9, Rule 9 ibid and in consequence, set aside/recall the order dated 22.5.2009 by which the appellant’s civil title suit was dismissed for want of prosecution. At the outset, I consider it apposite to remind myself of the memorable observations of Learned Judge - Vivian Bose, J made in a case reported in [ AIR 1955 SC 425 , Sangram Singh vs. Election Tribunal]. While dealing with applicability of procedural laws to the case and how it should be applied by exercising the judicial discretion by the courts, the learned Judge, in his distinctive style of writing, held as under:- “A code of procedure is a body of law designed to facilitate justice and further its ends, and should not be treated as an enactment providing for punishments and penalties. The laws of procedure are grounded on the principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. The laws of procedure are grounded on the principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Subject to clearly defined exceptions the laws of procedure should be construed wherever reasonably possible, in the light of that principle. The court is invested with the widest possible discretion to see that justice is done to all concerned. No hard and fast rule can be laid down; and the court in the exercise of its judicial discretion will have, in a given case, to determine what consequences are to follow from non-appearance. An order awarding costs, or an adjournment, or the consideration of the written statement and the framing of the issues on the spot, can in some cases meet the ends of justice. In other cases, more drastic action may be called for.” Applying the aforesaid principle of law to the facts of the case in letter and spirit, I have no hesitation in allowing this appeal and set aside the impugned order. It is not in dispute that though the suit was dismissed for want of prosecution on 22.5.2009 because none appeared for the plaintiff when the suit was called on for hearing, the plaintiff filed an application for its restoration under Order 9 Rule 9 ibid the same day. The grounds stated in the application by the plaintiff in my view could not be said to be either unnatural or unreasonable or false or in any manner incorrect. Indeed, it always happens in the office of the lawyer who has to work with the assistance of junior and clerk. To say, therefore, that the plaintiff could not properly explain the ground for his absence and therefore failed to make out any good cause amounted to relying upon sheer technicalities and denying him of doing substantial justice for prosecuting the suit on merits. This is what was emphasised by the Supreme Court in Sangram Singh case (supra) saying that approach of the court while dealing with Order 9 application should not be so technical but it should be such which does not deprive a party from prosecuting their grievance on merits for which they come to court. This is what was emphasised by the Supreme Court in Sangram Singh case (supra) saying that approach of the court while dealing with Order 9 application should not be so technical but it should be such which does not deprive a party from prosecuting their grievance on merits for which they come to court. Accordingly and in the light of the foregoing, the order dismissing the application filed by the plaintiff cannot sustain and deserves to be set aside. The appeal thus succeeds and is hereby allowed. The impugned order is set aside. As a result, the application filed by the plaintiff under Order 9, Rule 9 ibid stands allowed on the ground that plaintiff was able to make out a good ground for recall of order dated 22.5.2009 within the meaning of Order 9 Rule 9 ibid. The order dated 22.5.2009 passed in Title Suit is recalled. As a consequence, the civil suit being TS No.33/2007 is restored to its file for its disposal on merits in accordance with law. The parties shall appear before the Trial Court on 11.8.2014 to enable the Trial Court to proceed with the trial of civil suit on merits. It shall be decided within six months from the date of parties’ appearance. I, however, notice that the appellant paid ad valorem court fees of Rs.11,000/- (approximately) on memo of appeal for filing this appeal. I have however strong reservations as to whether the appellant was required to pay ad valorem court fees to file misc. appeal under Order 43, Rule 1 C.P. Code which seeks to challenge an order passed in Order 9 proceedings by the trial court. Why I say this is because this is not first appeal filed under Section 96 of C.P. Code against any decree where appellant is required to pay ad valorem court fees as per provisions of Court Fee Act on valuation of the appeal. Here is a misc. appeal questioning the legality and correctness of the order passed on an interlocutory application. In such case, the appellant is required to pay only a fixed amount of court fee as per provisions of Court Fees Act. Here is a misc. appeal questioning the legality and correctness of the order passed on an interlocutory application. In such case, the appellant is required to pay only a fixed amount of court fee as per provisions of Court Fees Act. Registry is, therefore, to examine as to whether the appellant was required to pay an ad valorem court fees on a memo of appeal filed under Order 43 Rule 1 against an order and if so under what provision and on what basis. It is also when an appeal is filed under Section 96 against the decree, he is required to pay ad valorem Court fees and lastly, how much fixed Court fees the appellant is required to pay on misc. appeal if filed against the order passed by the trial Court? Be that as it may and apart from the aforesaid legal question which the Registry will examine at their end for other cases for future reference. So far as case in hand is concerned, in my opinion, the appellant is otherwise entitled to claim refund of the amount of ad valorem court fees under Section 13 of the Court Fees Act because the case has resulted in remand for deciding the case on merits to the Trial Court. It has been a settled law that when a case is remanded to the trial court by the appellate court, then the appellant becomes entitled to claim refund of the court fees which he has paid on memo of appeal. The appellant is therefore entitled to claim refund of the court fees under Section 13 of the Court Fees Act. In the light of the foregoing discussions, Registry is directed to issue necessary refund certificate in favour of the appellant in accordance with the provisions of the Court Fees Act and refund the ad valorem fees after deducting only that much of amount of court fees which is payable on misc. appeal for filing the appeal under order 43 Rule 1 of Code of Civil Procedure. On such certificate being issued, the appellant will apply for refund from the State Treasury which will accordingly issue A/C cheque for the refund of amount of the court fees specified in the refund certificate in the name of the appellant i.e. “M/S Sankha Press Pvt. Ltd”. No cost.