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2018 DIGILAW 806 (RAJ)

Mangi Lal Luhar v. State of Rajasthan

2018-03-20

PUSHPENDRA SINGH BHATI

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JUDGMENT : Pushpendra Singh Bhati, J. 1. Petitioner has preferred this writ petition under Articles 226 & 227 of the Constitution of India claiming the following reliefs:- "It is, therefore, most respectfully prayed that this writ petition may kindly be allowed with costs and by issuing an appropriate writ, order or direction, the impugned order dated 05.07.2012 may kindly be quashed and set aside and the application filed by the petitioner under Sec. 65(b) of Rajasthan Court Fees and Suit Valuation Act may kindly be ordered to be allowed and court fee paid by the petitioner for Rupees 1,40,510/- may kindly be ordered to be refunded to the petitioner. Any other appropriate order, which deemed fit in the facts and circumstances of the case may kindly be passed in favour of the petitioner." 2. Learned counsel for the petitioner states that upon the compromise entered into between the parties, an application was moved under Section 63(2) of the Rajasthan Court Fees and Suits Valuation Act, 1961 (hereinafter referred to as 'the Act of 1961') seeking refund of the court fee. The said application was dismissed on account of the fact that such application ought to be moved under Section 65(b) of the Act of 1961. 3. For ready reference, Section 65(b) of the Act of 1961 is quoted hereinbelow:- "Where the Court refers the parties to a suit to anyone of the mode of settlement of dispute referred to in Section 89 of the Code of Civil Procedure, 1908 (Central Act No. 5 of 1908 and the matter is settled by one of the Code of Civil Procedure, the plaintiff shall be entitled to a certificate from the Court authorizing him to receive back from the Collector, the full amount of the fee paid in respect of such plaint" 4. Learned counsel for the petitioner has shown to this Court the impugned order, wherein learned court below has already recorded that since the compromise, out of court, had happened between the parties, therefore, no indulgence could have been granted for refund of the court fee. 5. Learned counsel for the petitioner has shown to this Court the impugned order, wherein learned court below has already recorded that since the compromise, out of court, had happened between the parties, therefore, no indulgence could have been granted for refund of the court fee. 5. In support of his submissions, learned counsel for the petitioner has relied upon the judgment passed by this Hon'ble Court in Mool Singh vs. Abdul Jabbar, 2012(1) DNJ (Raj.) 31, decided on 28.11.2011, which reads as under:- "In this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for quashing order dated 15.11.2010 passed by the Addl. District Judge No. 2, Jodhpur whereby the application filed by the petitioner for returning the court-fee upon compromise was rejected. Learned counsel for the petitioner submits that an amendment was made in the Rajasthan Court Fee & Suits Valuation Act, 1961 and new Section 65B was added whereby it is provided that in the event of settlement of dispute under Section 89 of the Code of Civil Procedure, 2008 (sic 1908), the plaintiff shall be entitled to a certificate from the Court authorizing him to receive back from the Collector (Stamps) the full amount of court-fee paid in respect of such suit; but, in this case, although the matter was not referred under Section 89, C.P.C. but the fact remains that the matter was settled as per spirit of compromise and suit was withdrawn by the petitioner-plaintiff, therefore, obviously the application filed by the petitioner-plaintiff for issuing the certificate to receive back from the Collector (Stamps) the amount of fee paid in respect of the suit but the trial Court rejected the application of the petitioner on hyper-technical ground, therefore, the order impugned may be quashed and trial Court may be directed to issue certificate authorizing the petitioner-plaintiff to receive back from the Collector (Stamps) full amount of the fee paid by him in respect of the plaint. In support of his contention, learned counsel for the petitioner invited my attention towards judgment rendered by this Court in S.B. Civil First Appeal No. 452/2009, Arvind Deval vs. Mool Singh Deval and submits that in the similar circumstances the coordinate Bench of this Court passed order for issuing the certificate for the aforesaid purpose. In support of his contention, learned counsel for the petitioner invited my attention towards judgment rendered by this Court in S.B. Civil First Appeal No. 452/2009, Arvind Deval vs. Mool Singh Deval and submits that in the similar circumstances the coordinate Bench of this Court passed order for issuing the certificate for the aforesaid purpose. After hearing learned counsel for the petitioner, I have perused Section 65B of the Rajasthan Court Fee & Suits Valuation Act, 1961 which reads as under : "65-B. Refund of Fee.-Where the Court refers the parties to a suit to any one of the mode of settlement of dispute referred to in Sec. 89 of the code of Civil Procedure, 1908 (Central Act No. 5 of 1908) and the matter is settled by one of the modes provided under Sec. 89 of the Code of Civil Procedure, the plaintiff shall be entitled to a certificate from the Court authorising him to receive back from the Collector, the full amount of the fee paid in respect of such plaint." The provision of above section was taken into consideration by the coordinate Bench of this Court in the case of Arvind Deval (supra) and after considering the provisions of the aforesaid section, passed the following order : "4. It is true that Section 65-B ibid provides for refund of the Court Fee where the dispute between the parties to the suit is settled by one of the modes provided under Section 89 of the Civil Procedure Code, 1908, but then, the said provision has been incorporated so as to encourage the amicable settlement between the parties out of the Court. Therefore, keeping in view, the spirit of Section 65-B ibid, in considered opinion of this Court, in the matters where the dispute is settled between the parties amicably without intervention of the Court also the full amount of court fee paid deserves to be refunded to the appellant. 5. Accordingly, the applications are allowed. The appeal is dismissed as withdrawn. A certificate may be issued to the appellant authorising him to receive back from the Collector (Stamp), the full amount of fee paid in respect of the present appeal i.e. Rs. 5. Accordingly, the applications are allowed. The appeal is dismissed as withdrawn. A certificate may be issued to the appellant authorising him to receive back from the Collector (Stamp), the full amount of fee paid in respect of the present appeal i.e. Rs. 22,104/-." In my opinion, when the Legislature is, time and again, making amendment for the purpose of finalization of litigations and, in this regard, amendment is also made in the Act of 1961 while inserting Section 65-B, then, obviously the trial Courts shall not refuse to return the court fee, in the event of withdrawal of the suits after compromise and settlement of the issue finally. In this view of the matter, this writ petition is allowed. Order impugned dated 25.11.2010 is hereby quashed and set aside. Learned Addl. District Judge No. 2, Jodhpur is directed to issue certificate authorizing the petitioner-plaintiff to receive back from the Collector (Stamps) the full amount of court fee paid in respect of Suit No. 116/08, in which, the matter has been finally decided after compromise." 6. Learned counsel for the respondent does not refute the aforesaid submissions made on behalf of the petitioner. 7. After hearing counsel for the parties as well as perusing the record of the case alongwith the precedent law cited at the Bar, this Court is of the opinion that Section 65(b) of the Act of 1961 clearly envisages the refund of the court fee, in the event of a compromise having arrived at between the parties, and admittedly, in the present case, the compromise had happened between the parties. 8. On a bare reading of the aforequoted precedent law also, it becomes clear that the intention of the legislature behind incorporating such a provision in the Act of 1961, was that in case the concerned parties decide to settle the dispute out of court, then as an incentive, in lieu of reducing the burden upon the courts and to encourage the parties to enter into a compromise, the provision, in the form and shape of Section 65(b) was incorporated in the Act of 1961. Thus, the learned court below has erred in dismissing the petitioner's application on technical ground holding that it was moved under Section 63(2) of the Act of 1961, instead of Section 65(b) and also the compromise had happened between the parties outside the Court. 9. Thus, the learned court below has erred in dismissing the petitioner's application on technical ground holding that it was moved under Section 63(2) of the Act of 1961, instead of Section 65(b) and also the compromise had happened between the parties outside the Court. 9. Resultantly, the present writ petition is allowed, and while quashing and setting aside the order impugned dated 05.07.2012, the learned court below is directed to issue certificate authorizing the petitioner to receive back, from the Collector (Stamps) concerned, the full amount of court fee paid in respect of suit in question, stemming out of the dispute, resolution whereof, admittedly, has already been worked out between the parties, out of court, by way of entering into the compromise.