State of Uttar Pradesh v. Pt. Chandra Bhushan Misra

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2614 of 1969. From the Judgment and Order dated 20-12-1967 of the Allahabad High Court in Second Appeal No. 3105 of 1963 . . G. N. Dixit and 0. P. Rana for the Appellant. Ex-parte for the Respondent. 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 [1980J1 S.C.ll. 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 J agdish 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 13 3 ( 1) ( c) of the Constitution and has preferred this appeal. Section 13 of the Court Fees Act 187 0, 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.

3 51 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 3 51 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 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<;ler XLI Rule 23 of the 1908 Code also provided for the remand of a .oase u. P. STATE v. CHANDRA BHUSIJAN (Chimiappa Reddy,!.) 1133 to 'jhe lower court by the appellate court where the suit had been dispoSed of upon a preliminary point and the decision of such preliminary poiiit was reversed in appeal by the appellate court. In exercise of the powers vested in it under section 122 of the Code of Civil Procedtire · 1908, the Allahabad High Court amended the provisions of Order XLI Rule 23 so as to provide for the remand of a case by the iappellate court to the trial court, not only when the suit had been decided upon a preliminary point and the decision was reversed in appeal, but also whenever the appellate court considered it necessary in the interest of justice.

The question for consideration in this appeal is whether the power to grant refund of court fees under section 13 of the Court· Fees Act 1870 was attracted to a case where the appellate court remanded the case to the lower court in the interest of justice as·provided by the provisions of Order XLI Rule 23 as amended by the High Court of Allahabad. In order to answer the question a reference is necessary to section 158 of the Code of Civil Procedure 1908. It was as follows : "158. In every enactment or notification passed or issued · before the commencement of this Code in which reference is made to or to any Chapter or section of Act VIII of 1859 or any Code of Civil Procedure or any Act amending the same or any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding Part, Order,· Section or rule".

It follows from Section 158 that refei:ence in Section 13 of the Court Fees Act 1879 to Section 351 of the Code of Civil Procedure 1859 has to be read as reference to Order XLI Rule 23 of the Code of Civil Procedure 1908. The submission of the learned counsel was that the reference to any provision of"the Code of Civil Procedure 1908 nur- · suant to section 158 of the Code must be to provision occurring in the body of the main code consisting of the provisions from section 1 to .-~ion 158 and not to the provisions of the rules in the first schedule. ,.,/' He further submitted that even if reference to the rules in the first schedule was permissible it should only be to the rules as enacted by the legislature itself and not as amended by the High Court. The first part of the submission of the learned counsel has to be rejected straighthway having regard to the express reference to 'Ord.er' and 'Rule' in section 158 of the Code of Civil Procedure 1908.

The second part of the submission requires a slightly closer examination.,Section 2(1) of the Code of Civil Procedure 1908 defined "Code" as including . 1134 SUPMME COUllT ~POl\TS (1980] 1 S.C.I\. "Rules". Section 2(18). defined "Rule&" as rneaning "Rules 3lld fomis cootained in the first schedule or made under seqipn 122 -0r section 125'\ Section 121 of the 190.8 Code .declared Ulat the rules in the first schedule shall havti effect "as if en;ided · in the ·body of the code until annulled or altered in accorda:u:e with. the provisions of part X of the Code" (section 121 to 131).

Section 122 enabled the High Conrtto make rules, from time to time "regulating their own procedure or the procedur~ of the Civil ~ s.ubject to their superintendence, and lllllde by such rules, amiual, alter or add to all or any of the niles in the first schedule". ~ 126 made the rules made by the High Court subject to the previous approval of the Government of the State. · Section 127 provided rthllt the rules so made and 'approved shall have the same force and .elfect as if they had been contained in the first schedule. The.<ie pro~ make it abun<lantly clear that the rules made by a High Court all2fing the rules contained in the first schedule as originally enacted by the legislature shall h'ave the same force and effect as if they had been contained in the first schedule and therefore, necessarily became part of the Code for all purposes. That is the clear effect of the definition of the expressions "Code" and "Rules" and sections 121, 122 and 127.

It does not atlpear to be necessary to embark upon a detailed OX'llmination of each one of these provisions, since the position appea<s to us to be very clear. We, therefore, agree with the view expre6Scd by Pathak and Kirty JJ., in Chandra Bhushan Misra v. Smt. lavatri Devi('), regarding the effect of section 158 of the Code of Civil Procedure and sections 2(1) to 2(18), 121, 122 and 127. fagdish Sahai J., was inclined to the view. that the amendments made by the High Court .were only fictionally embodied in the Gode and th'at the referenc~ to section 351 of the Code of 1859 in section 13 of the Court Fees Act was to be construed as ai reference only t' the provisions of Order XLI Rule 23,, as . opginally passed by the Legislature and not as amended by the High Court.

In our opinion the view of Jagdish Sahai, J. does not give full effect t(} section 127 of . the Civil Procedure Code 1908 which provided that the rules made by the High Court shall have the same force 'and effect as if they fu><!-.. "· 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. j