STATE OF UTTAR PRADESH v. PT. CHANDRA BHUSHAN MISRA (2)

Citation: [1980] 1 S.C.R. 1131

Court: Supreme Court of India

Bench: R.S. SARKARIA, O. CHINNAPPA REDDY

Case summary

majority of the Division Bench allowed the respondents claim for refund of the court fees on the view that refund could be ordered under section 13 of the Court Fees Act even \Vhere the remand was made under the· amended pro-visions of Order XLT, Rule 23.

Judgment text

STATE OF UTTAR PRADESH v. PT. CHANDRA BHUSHAN MISRA November 6, 1979 ! \. [R. S. SARKARIA AND 0. ClllNNAPPA REDDY, JJ. ] Code of Civil Procedure 1908-Rules frar11ed by the High Court-If lun·e the san1e force as if originally enacted in the c'ode.. A second appeal under section 100 Code of. Civil Procedure 1908 was allowed by the AJl;ihabad High Court and the matter was remanded by the High Court under Order XL! , Rule 23 CPC as amended by the High Olurt to the Lo\ver Appellate Court for fresh disposal in accordance with law. majority of the Division Bench allowed the respondents claim for refund of the court fees on the view that refund could be ordered under section 13 of the Court Fees Act even \Vhere the remand was made under the· amended pro-visions of Order XLT, Rule 23. Jn appeal it \Vas contended thl1t even if reference to the rules in the first 8 schedule \vas permissible it should onlY be to the rules as enacted by the legislature and not as amended by the High Court. HEl.

D : A conspectus of the relevant·provisions of the Code of Civil Procedure 1908 makes it clear that the rules made by the High Court altering the ru1es contaioed in the first. schedule as originally emc~ by the legislature shall have the same force and effect as if they had been contained in tpe :first schedule and therefore necessarily become part of the code for all purposes. That is: the clear effect of the definition of the expression 'code' and 'rules' and sections 121,,122 and 127 of the Code of Civil Procedure, 1908. [1134 C-E] Chandra Bli11shan Misra v. Snit. lal'afri Dei·i A. l. R. (56) 196~ Allahabad 142-approved. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2614 of 1969. From the Judgment and Order dated 20-12-1967 of the Allahabad I High Court in Second Appeal No. 3105 of 1963. . G. N. Dixit and 0. P. Rana for the Appellant. Ex-parte for the Respondent. 1_,... The Judgment of the Court ;vas delivered by CHINNAPPA REDDY, J.

-A second appeal under section 100 of the Code of Civil Procedure 1908 was allowed by the Allahabad High Court and the matter was remanded to the Lower Appellate Court for fresh disposal in aee-0rdance with law p-Oint. The order of remand was made under the provisions of Order XU Rule 23 of the Civil Procoo11re Code 1908, as "amended by the Allahabad High Court. The ' . successful appellant before the High Court filed an application under section 13 of the Court Fees Act, 1870 claiming a refund of the Court Fees Act, 1870 claiming a rduud of the Court fee paid in tile Second Appeal. The application came before O. C. Mathur, J. , who entertained a doubt whether section 13 of the Court Fees Act applied to a case of remand under the provisions of Order XLI Rule •• 23 Civil Procedure Code as amended by the High Court and referred the question for the consideration of a Full Bench, Thereafter the application was heard by the Full Bench consisting of Jagdish Sahai, Pathak and Kirty, JJ.

Pathak and Kirty JJ. , took the view that refund of Court Fee could be ordered under section 13 of the Court Fees Act, even where the remand was made under the amended provisions of Orrler XLI Rule 23. Jagdish Sahai, J. dissented. In accordance with the opinion of the majority, the court fees paid by the appellant before the High Court was directed to be r¢mded. The State of U. P. obmined a certificate under Article 133(1) (c) of the Constitution and has preferred this appeal. Section 13 of the Court Fees Act 1870, in so far as it is material is as follows : "If au appeal or a plaint, which has been rejected by the lower Court on any of the grounds mentioned in the Code of Civil Procedure as ordered to be received, or if a suit js iem:riided in appeal on any of the grounds mentioned in s. 351 of the same code for a second decision of a lower court, the lower court shat!

grant to the appellant a certificate, authorising him to receive back from the Collector the full amount 6f fee paid on the memorandum of appeal". Section 13, thus speaks of a SJ! it remanded in appeal on any of the grounds . n;ientioned in section 351 of the same Code i. e. the Code of Civil Procedure which was then in force. Section 351 of the Code of Civil Procedure 1859 provided for the remand of a case by the J appellate court to the lower court for a decision on the merits on the case. where "the lower court shall have disposed of the case upon , any preliminary point so as to exclude any evidence of fact whish ~all · appear to the appell~te court essential to the rights of the parties". if the decision on the preliminary point was reversed by the appellate court. The Code of 1859 was repealed and replaced by the Code of 1877. Section 562 of the 1877 Code was substantially in the same . u terms as sectioμ 351 of the 1859 Code.

The Code of 18~2 was repealed and replaced by the Code of Civil Procedure 1908. Or <! -.. "· j been contained in the first schedule. We are of the view that the question was rightly answered by the Full Bench of the Allahabad High Court and the appeal is, therefore, dismissed. ... ·Appeal dismissed. (! ) A. T. R. (56) 1969 Allahabad 142.