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2022 DIGILAW 2094 (RAJ)

Majid Khan S/o Jain Khan v. Mijjaj S/o Jain Khan

2022-07-22

ANOOP KUMAR DHAND

body2022
JUDGMENT : ANOOP KUMAR DHAND, J. “Discourage litigation, persuade your neighbours to compromise whenever you can. Point out to them how the normal winner is often a real looser - in fees, expenses and time.” Abraham Lincoln 1. To achieve the object of reducing the pendency of cases through amicable settlement between the parties, Section 89 was inserted in the Code of Civil Procedure, 1908 (for short ‘CPC’). Whenever the matters are settled by the parties to the litigation by any of the mode contained under Section 89 of CPC, the plaintiff can claim certificate under Section 65-B of the Rajasthan Court Fees and Suits Valuation Act, 1961 (for short ‘the Act of 1961) to receive back the full amount of court fees paid in respect of his plaint. 2. The purpose of Section 65-B of the Act of 1961 is to reward parties who have chosen to withdraw their litigation in favour of more conciliatory dispute settlement mechanisms, thus saving the time and resources of the Court, by enabling them to claim refund of the court fees deposited by them. Such refund of court fee, though it may not be connected to the substance of the dispute between the parties, is certainly an ancillary economic incentive for pushing them towards exploring alternative methods of dispute settlement like withdrawal of the suit. 3. The legal representatives of the plaintiff-respondent have decided to withdraw the suit filed by the plaintiff at this appellate stage and the parties to the appeal are claiming the refund of the court fees paid by them. This is a short issue involved in this appeal. 4. Instant civil first appeal has been filed by the appellant defendant under Section 96 CPC against the judgment and decree dated 25.09.2017 passed by the Court of learned Additional Sessions Judge No. 2, Deeg, District Bharatpur (for short ‘the Court below’) by which the suit for specific performance and cancellation of gift deed filed by the plaintiffs respondents was decreed. 5. During the pendency of this appeal, legal representatives of the plaintiff-respondent have entered into a compromise with defendant No. 2. 6. In view of the settlement arrived at between the parties, the legal representatives of the plaintiff-respondent have submitted an application (I.A. No. 1/2022) under Order 23 Rule 1 CPC for withdrawal of the suit. 7. 5. During the pendency of this appeal, legal representatives of the plaintiff-respondent have entered into a compromise with defendant No. 2. 6. In view of the settlement arrived at between the parties, the legal representatives of the plaintiff-respondent have submitted an application (I.A. No. 1/2022) under Order 23 Rule 1 CPC for withdrawal of the suit. 7. Learned counsel for the parties submit that since the suit has been withdrawn on the basis of compromise, so appropriate orders may be passed for refund of court fees to the respective parties in view of the provision contained under Section 65B of the Act of 1961. For ready reference, Section 65B of the Act of 1961 is reproduced as under: “65B. 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 Section 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 Section 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.” 8. Counsel for the parties placed reliance on a judgment passed by this court in the case of Chandresh Agrawal vs. Rent Tribunal, Jaipur City and Bhavesh Maroo, S.B. Civil Writ Petition No. 7915/2011 decided on 06.07.2011, wherein the Co-ordinate Bench of this Court issued directions to the Court below to refund the court fee as per the provisions contained under Section 65B of the Act of 1961. 9. Counsel for the parties further placed reliance on a judgment delivered by the Hon’ble Apex Court in the case of High Court of Judicature at Madras vs. M.C. Subramaniam and Others, Special Leave Petition (Civil) No. 3063-3064 of 2021 wherein the Hon’ble Apex Court has also issued directions for refund of the court fee keeping in view the provisions contained under Section 89 of CPC. 10. In the case of M.C. Subramaniam (supra), the Hon’ble Apex Court has dealt with the issue of refund of court fee in Para Nos. 7 and 8 as under: “7. 10. In the case of M.C. Subramaniam (supra), the Hon’ble Apex Court has dealt with the issue of refund of court fee in Para Nos. 7 and 8 as under: “7. In addressing the question of whether the refund of court fee was permissible under the relevant rules, the High Court considered Section 69-A of the Tamil Nadu Court Fees and Suit Valuation Act, 1955 (hereinafter “the 1955 Act”) which reads as follows: “69-A. Refund on settlement of disputes under section 89 of Code of Civil Procedure. Where the Court refers the parties to the suit to any of the modes of settlement of dispute referred to in section 89 of the Code of Civil Procedure, 1908 (Central Act V of 1908), the fee paid shall be refunded upon such reference.” Such refund need not await for settlement of the dispute. 8. Considering, the appeal suits to be continuation of original suits, and therefore falling within the ambit of suits as provided in Section 69-A, the Court went on to take notice of Section 89, CPC which reads as follows: “89. Settlement of disputes outside the Court: (1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for: (a) arbitration. (b) conciliation. (c) judicial settlement including settlement through Lok Adalat. (d) mediation. (2) Were a dispute has been referred: (a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act. (b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat. (b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat. (c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act. (d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.” 9. After giving due consideration to the above provisions, the High Court held that, given their beneficial intent, they must be interpreted liberally, in a manner that would serve their object and purpose. Construing them narrowly would lead to a situation wherein parties who settle their dispute through a Mediation Centre or other centres of alternative judicial settlement under Section 89 CPC would be entitled to claim refund of their court fee, whilst parties who settle the disputes privately by themselves will be left without any means to seek a refund. Accordingly, the High Court opined that such differential treatment between two similarly situated persons, would constitute a violation of Article 14 of the Constitution. Therefore, in the High Courts view, a constitutional interpretation of Section 89 CPC and resultantly Section 69-A of the 1955 Act, would require that these provisions cover all methods of out-of-court dispute settlement between parties that the Court subsequently finds to have been legally arrived at.” 11. The Delhi High Court has also taken a similar view in the matter of J.K. Forgings vs. Essar Construction (India) Ltd. (2009) 113 DRJ 612 , wherein in Para Nos. 11, 12, 14, 17 and 18 it has been held as under: “11. The laudable object sought to be achieved by inserting and amending these sections seems to be speedy disposal. The policy behind the statute is to reduce the number of cases by settlement. 11, 12, 14, 17 and 18 it has been held as under: “11. The laudable object sought to be achieved by inserting and amending these sections seems to be speedy disposal. The policy behind the statute is to reduce the number of cases by settlement. Section 89 of C.P.C. and Section 16 of the Court Fees Act are welcome step in that direction, as the number of cases has increased, it is the duty of court to encourage settlement. In present scenario of huge pendency of cases in the courts a purposive and progressive interpretation is the requirement of present hour. The intention of the Legislature is primarily to be gathered from the object and the words used in the material provisions. The statute must be interpreted in their plain grammatical meaning. 12. It is very clear that the Legislative intent of Section 16 of the Court Fees Act was made broad enough to take cognizance of all situations in which parties arrive at a settlement irrespective of the stage of the proceedings. It is also obvious that the purpose of making this provision was in order to provide some sort of incentive to the party who has approached the court to resolve the dispute amicably and obtain a full refund of the court fees. Having regard to this position, the present application will have to be allowed. xxx xxx xxx 14. This is not a case where parties to the suit after long drawn trial have come to the court for settlement. Had it been the case of long drawn trial non-refund of court fees could have been justified but in such like cases courts endeavor should be to encourage the parties and court fees attached with the plaint should be refunded as an incentive to them. xxx xxx xxx 17. Settlement of dispute only through any of the mode prescribed under section 89 of C.P.C is not sine qua non of section 89 C.P.C. rather it prescribes few methods through which settlement can be reached, sine qua non for applicability of section 89 is settlement between the parties outside the court without the intervention of the courts. 18. It is also not the requirement of the section that court must always refer the parties to Dispute Resolution Forum. If parties have arrived at out of court settlement it should be welcomed subject to principles of equity.” 12. 18. It is also not the requirement of the section that court must always refer the parties to Dispute Resolution Forum. If parties have arrived at out of court settlement it should be welcomed subject to principles of equity.” 12. It is true that Section 65B (ibid) provides for refund of the court fees where the dispute between the parties to the suit is settled by one of the modes provided under Section 89 of CPC. 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 65B (ibid), in those matters as well where the dispute is settled between the parties amicably without intervention of the Court, in my considered opinion, the court fees deserve to be refunded to the plaintiff. 13. In view of the settled proposition of law and the directions issued in the judgments cited above, the prayer made by the counsel for the parties for refund of the court fees is allowed. 14. The application (I.A. No. 1/2022) filed under Order 23 Rule 1 CPC stands allowed. Legal representatives of the plaintiff respondent No. 1 are allowed to withdraw the suit. 15. In the instant case, the appellant and the respondents No. 1/1 to 1/5 would be entitled to refund of court fees. 16. The Court below is directed to issue a certificate to the appellant and the respondents No. 1/1 to 1/5 authorizing them to receive back from the Collector, the full amount of court fees deposited by them. 17. The appeal stands disposed of in the light of above directions. 18. Stay application and all pending applications, if any, also stand disposed of.