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Madhya Pradesh High Court · body

2016 DIGILAW 440 (MP)

Shriji Ware House v. M. P. State Civil Supplies

2016-06-14

VIVEK AGARWAL

body2016
ORDER 1. In this writ petition, petitioner has challenged the order dated 1.4.2010 passed by 3rd Additional District Judge, Morena in Civil Suit No.1-B/2009. The petitioner had filed an application for refund of court-fees of Rs.20,640/- after dismissal of the Suit No.1-B/2009 which was filed on 6.7.2009. In the said suit, respondent No.4 had filed an application under Order 7 rule 11 of CPC which was decided vide order dated 11.11.2009 and suit of the plaintiff was dismissed with a direction that matter be referred to an arbitrator. 2. In the present petition, petitioner claimed refund of the court-fees on the ground that when the suit was returned for filing before the Court of competent jurisdiction, in terms of the provisions contained in Order 7 rule 10 CPC petitioner is entitled to refund of the court-fees. It is further submitted that the proceedings of the trial Court will be deemed to be proceedings under section 89 of CPC and, therefore, order dated 11.11.2009 being an order under section 89 of CPC, petitioner is entitled for refund of court-fees. He has also referred to section 16 of the Court Fees Act,1870 in support of the claim that petitioner is entitled to a certificate from the Court authorizing him to receive back the court-fee from the Collector, the full amount of the fee be paid in respect of such plaint. The petitioner has referred to few decisions in support of his claim for refund of the court-fees. The first decision is of Punjab and Haryana High Court in the matter of Bhura Mal Dan Dayal v. Imprial Flour Mills Limited and others, as reported in AIR 1959 Punjab 629, in support of his claim for refund of court-fees. Facts of the present case are totally different from the facts of the case of Bhura Mal Dan Dayal v. Imprial Flour Mills Limited and others in as much as in the later case Court having no jurisdiction over the subject matter of the suit had returned the plaint for presentation to the appropriate Court of competent jurisdiction. This Court has already observed that Provisions of Order 7 rule 10 will be applicable only when plaint is returned for being presented to the appropriate Court but in the present case as plaint was not returned, ratio of this decision will not help the petitioner. 3. This Court has already observed that Provisions of Order 7 rule 10 will be applicable only when plaint is returned for being presented to the appropriate Court but in the present case as plaint was not returned, ratio of this decision will not help the petitioner. 3. Petitioner has similarly relied on the decision in the case of Mamidi Lakshminarayana v. Akula Satyanarayana and others, as reported in AIR 1963 Andhra Pradesh 68. In that case also on the basis of peculiarity jurisdiction, the plaint was returned for presentation before the appropriate Court, therefore, again ratio of the said decision is not in favour of the petitioner and facts are distinguishable. Petitioner has also placed reliance on the decision of the Delhi High Court, as reported in AIR 1969 Delhi 130, in case of Chief Controlling Revenue Authority and another v. Fertilizer Corporation of India Ltd. and others. Facts of that case are also different where the plaint was returned by Hoshiyarpur civil Court for being presented to a competent Court at Delhi as the territorial jurisdiction of the subject matter of the suit was not with the Hoshiyarpur civil Court. 4. The question for adjudication in the present case is whether the order dated 11.11.2009 will fall within the purview of section 89 of CPC or within the purview of Order 7 rule 10 of CPC, thus, entitling the petitioner to invoke the provisions of section 16 of the Court-fees Act 1870. 5. This Court has perused the record and it is apparent from the order dated 11.11.2009 that defendant No.4 had moved an application under Order 7 rule 11 read with section 151 of CPC. It was submitted by the defendant No.4 that a lease agreement was executed between the parties on 2.6.2008 and the said lease agreement provides for referring a dispute between the parties to an arbitrator, whose decision shall be binding on both the parties. The plaintiff had filed reply to the said application under Order 7 rule 11 and had contested that defendant No. 4 has since not paid the rent, therefore, the dispute need not be referred to the arbitrator and the objection raised by the defendant No.4 is unnecessary. It was also submitted that such application was filed merely to delay the proceedings. 6. It was also submitted that such application was filed merely to delay the proceedings. 6. After hearing the parties, learned 3rd Additional District Judge, Morena had accepted the application under Order 7 rule 11 of CPC and had dismissed the suit on the ground of suit being not maintainable within the jurisdiction of learned trial Court in terms of the stipulations of the agreement, it is apparent from the order dated 11.11.2009 that the suit was not returned for filing before the arbitrator. 7. At this stage, it will be profitable to refer to section 89 of CPC which reads as under :- “It is apparent that where it appears to the Court that there exist element of settlement acceptable to the parties, it is the Court may formulate the terms of possible settlement and refer the same for arbitration. Thus the basic requirement of tracing into service, the provisions of section 89 of CPC is that the Court should be satisfied of availability elements of a settlement, those elements should be acceptable to the parties and then the Court should formulate the terms of a possible settlement and refer them to either arbitration, conciliation, judicial settlement including settlement through Lok Adalat or mediation.” 8. In the present case none of the ingredients of section 89 of CPC are available as the civil suit was a contested matter in which objection of the respondent No.4 has been sustained and upheld by the learned trial Court without there being any consent of the present petitioner to amicably take the matter to arbitration. Therefore, it cannot be said that the order dated 11.11.2009 meet the requirements of section 89 of CPC. Similarly Order 7 rule 10 of CPC provides that subject to the provisions to the Order 7 rule 10A of CPC the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. In the present case it is apparent from the order dated 11.11.2009, Annexure P-3 that the plaint was not returned for presenting before the appropriate Court. In the present case objection of the defendant No.4 was upheld and the suit was dismissed on the ground of lack of jurisdiction due to availability of alternate remedy of arbitration. 9. In the present case it is apparent from the order dated 11.11.2009, Annexure P-3 that the plaint was not returned for presenting before the appropriate Court. In the present case objection of the defendant No.4 was upheld and the suit was dismissed on the ground of lack of jurisdiction due to availability of alternate remedy of arbitration. 9. Section 16 of the Court-fees Act, 1870 provides for refund of fee where a suit/dispute is settled in terms of section 89 of CPC, 1908. As has been observed above the suit in question was not decided in terms of the requirement of section 89 of CPC, therefore, there is no infirmity in the order dated 1.4.2010 passed by the Court of 3rd Additional District Judge, Morena. Thus, this writ petition under Article 227 of Constitution of India fails and is dismissed. 10. Parties to bear their own cost. D. D. Bansal for petitioner; Vilas Tikhe for respondents No.1 to 4; Praveen Newaskar, Government Advocate for respondent No.5/State.