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Chandra Bhushan Misra Vs. Smt. Jayatri Devi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Appln. No. Nil of 1967 in Second Appeal No. 3105 of 1963
Judge
Reported inAIR1969All142
ActsCourt-fees Act, 1870 - Sections 12; Code of Civil Procedure (CPC) , 1908 - Sections 7, 8, 96, 100, 121, 122, 127, 128 and 158 - Order 41, Rule 23; Code of Civil Procedure (CPC) , 1859 - Sections 351; General Clauses Act
AppellantChandra Bhushan Misra
RespondentSmt. Jayatri Devi
Appellant AdvocateC.P. Srivastava, Adv.
Respondent AdvocateSripat Narain Singh, Adv.
DispositionPetition allowed
Excerpt:
civil - court-fees - section 13 of court-fees act, 1870 and order 41 rule 23 of code of civil procedure, 1908 - whether the appellant is entitled to refund of court-fee paid on the memorandum of appeal remanded under order 41 rule 23 as amended by this court - held, on ground of interest of justice appellant is entitled to refund of court fee. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such.....jagdish sahai, j. 1. i have had the advantage of reading the opinion prepared by my brother pathak. i regret, for reasons given in this opinion, i am unable to agree with the conclusion drawn by him.2. being doubtful of the correctness of the decision of this court in raja viren-dra shah ju deo v. state of uttar pradesh, 1964 all lj 868 our brother g. c. mathur has referred this case to a full bench. this is how the matter has come before us.3. this case arises out of an application made by the appellant in second appeal no. 3105 of 1963 under section 13 of the court-fees act, 1870 (hereinafter referred to as the act).4. this court allowed the second appeal aforesaid on 2nd of january 1967 and set aside the decree passed by the first appellate court. it further remanded the case to the.....
Judgment:

Jagdish Sahai, J.

1. I have had the advantage of reading the opinion prepared by my brother Pathak. I regret, for reasons given in this opinion, I am unable to agree with the conclusion drawn by him.

2. Being doubtful of the correctness of the decision of this Court in Raja Viren-dra Shah Ju Deo v. State of Uttar Pradesh, 1964 All LJ 868 our brother G. C. Mathur has referred this case to a Full Bench. This is how the matter has come before us.

3. This case arises out of an application made by the appellant in second appeal No. 3105 of 1963 under Section 13 of the Court-fees Act, 1870 (hereinafter referred to as the Act).

4. This Court allowed the second appeal aforesaid on 2nd of January 1967 and set aside the decree passed by the first appellate court. It further remanded the case to the first appellate court with the direction to rehear the appeal.

5. The prayer contained on the instant application reads:--

'It is, therefore, most respectfully prayed that this Hon'ble Court be pleased to grant the applicant a certificate authorising him to receive back the full amount of court-fee of Rs. 717.50 paid in the above noted second appeal from the Collector of Varanasi or pass any other and further order which may be deemed fit and proper in the ends of justice.' Section 13 of the Act reads:--'If an appeal or plaint, which has been rejected by the lower court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received, or if a suit is remanded in appeal on any of the grounds mentioned in Section 351 of the same Code for a second decision by the lower court, the appellate Court shall grant to the appellant a certificate, authorising him to receive back from the Collector the full amount of fee paid on the memorandum of appeal; .....'.

Admittedly and clearly Section 351 mentioned in Section 13 of the Act is Section 351 of the Code of Civil Procedure 1859 which was in force in 1870 when the Act was passed and enforced. That provision was in the following terms:--

'If the lower Court shall have disposed of the case upon any preliminary point so as to exclude any evidence of fact which shall appear to the Appellate Court essential to the rights of the parties, and the decree of the Lower Court upon such preliminary point shall be reversed by the decree in appeal, the Appellate Court may, if it thinks right, remand the case, together with a copy of the decree in appeal to the Lower Court, with directions to restore the suit to its original number in the Register and proceed to investigate the merits of the case, and pass a decree therein.'

Section 352 of the Code of 1859 provided:--

'It shall not be competent to the Appellate Court to remand a case for a second decision by the Lower Court, except as provided in the last preceding section.'

6. The Code of 1859 was repealed and was replaced by the one of 1877 (Act X of 1877). In the Code of 1877 the counter part of Section 351 of the 1859 Code was Section 562. This provision ran:--

'If the Court against whose decree the appeal is made has disposed of the suit upon a preliminary point so as to exclude any evidence of fact which appears to the appellate Court essential to the 'determination of the rights of the parties and the decree upon such preliminary point is reversed in appeal, the appellate Court may, if it thinks fit, by order remand the case, together with a copy of the order in appeal, to the Court against whose decree the appeal is made, with directions to re-admit the suit under its original number in the register and proceed to investigate the suit on the merits.

The appellate Court may, if it thinks fit, direct what issue or issues shall be tried in any case so remanded.'

Section 564 of the 1877 Code provided:

'The appellate Court shall not remand a case for a second decision, except as provided in Section 562,'

7-8. The Code of 1877 was repealed and was replaced by the one of 1882 (Act No. XIV of 1882). In this Code the provisions of Sections 562 and 564 were brought forward from the Code of 1877 verbatim.

9. The Code of 1882 was also repealed and was replaced by the present Code,which was passed in 1908. In the present Code the counter-part of Section 562 of the Code of 1882 is Order XLI, Rule 23, which reads:--

'Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, .....'

This Court amended Order XLI, Rule 23, C. P. C. with effect from June 1, 1957 and that provision now for the purposes of this State reads:--

'Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, or where the appellate Court, while reversing or setting aside the decree under appeal, considers it necessary in the interest of justice to remand the case, it may by order remand the case.'

Clearly the Allahabad amendment to Order XLI, Rule 23, C. P. C. has widened the scope of the provisions. Whereas formerly a remand could be made only in a case where the decree of the lower court disposing of the case had proceeded on a preliminary point, now the position is that a remand order can be passed also in cases where the Court considers it necessary in the interest of justice to do so.

10. In other words now remand can be granted in a case which was disposed of on a preliminary point as also in a case where this Court is of the opinion that the interest of justice requires the remand of the case.

11. G. C. Mathur, J. has clearly stated in the referring order that he remanded the case under Order XLI, Rule 23 as amended by this Court on the ground that it was necessary to do so in the interest of justice. In other words as he himself points out his order of remand does not fall under unamended Order XLI, Rule 23, C. P. C.

12. The question requiring consideration is whether in these circumstances the appellant is entitled to the refund of the Court fees.

13. Clearly Section 351 of the Code of 1859 is no longer law now. Therefore, if the provisions of Section 13 of the Act are not to become dead letter, some meanings must be given to the words 'on any of the grounds mentioned in Section 351.' It is contended that for Section 351 we must read Order XLI, Rule 23, C. P. C., which is the counter part in the present Code of that provision. The further submission is that Order XLI, Rule 23, C. P. C. should be read for Section 351 in its amended form. Section 122, C. P. C. confers upon the High Courts the power to make rulesregulating their own procedure and the procedure of the civil courts subject to their superintendence and the power extends to annul, alter or add to all or any of the rules in the First Schedule. There is no dispute that this Court had the power to amend Order XLI, Rule 23, C. P, C. in the form in which it has done. Some other Courts have also amended Order XLI, Rule 23, C. P. C. and the amendments do differ to some extent

14. If the submission made by the learned counsel for the appellant-applicant were to be accepted, then Section 13 of the Act would have different scope and different meanings in different States depending upon the terms in which Order XLI, Rule 23. C. P. C. has been framed in those States. The Act is an All India Act and the same words in Section 13 cannot have different scope and different meanings in different States of this country. It was held by a Full Bench of this Court in Municipal Board, Kanpur v. Janki Prasad : AIR1963All433 , that the same word in a statute cannot have two different meanings in two different local areas governed by the same statute.

15. True, 'court fees' payable in a Court other than the Supreme Court is a State subject. (See Entry 3 of List II of II Schedule of the Constitution). The State legislature can, therefore, amend Section 13 for Uttar Pradesh, but only after following the procedure required by the Constitution, Such an amendment in this section cannot be assumed only on the basis of the amendment made by this Court in a provision contained not in this Act. but in another statute, i. e. Order XLI, Rule 23. C. P. C.

16. But apart from this consideration, in my opinion, the language of Section 13 of the Act does not support the submission made on behalf of the appellant-applicant. Properly analysed the provisions of Section 13 of the Act are that court fee would be refundable under the following two circumstances:

(i) If an appeal or plaint, which has been rejected by the lower court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received, or

(ii) if a suit is remanded in appeal on any of the grounds mentioned in Section 351 of the same Code.

Ours is a case where a suit is remanded in appeal and we are concerned with the second clause of Section 13 of the Act. To my mind, all that this clause provides for is that the grounds for remand must be those which are contained in Section 351 of the 1859 Code. The provision does not mean that the grounds must be those which are mentioned in the counter part of Section 351 in the Code contemporaneously applicable. Thelegislature has not used the words 'on any of the grounds mentioned in Section 351 or in its counter part in the Civil Procedure Code for the time being applicable.' In the expression 'on any of the grounds mentioned in Section 351 of the same Code' what is of importance is the grounds contained in Section 351 and not Section 351. The words used are not 'or if a suit is remanded under Section 351 of the same Code.' If those were the words used, there might have been some justification for saying that for Section 351. read its counter part in the existing Code. But the legislature has deliberately not used those words. In my opinion, it has not done so because it did not want to go beyond the grounds already existing in Section 351 of the 1859 Code and did not want to widen the scope of this Section in accordance with the local amendments which may be made in the counter parts of that provision in subsequent Codes.

The reference in Section 13 of the Act is confined to the grounds mentioned in Section 351 and does not extend to Section 351. It is an elementary and a cardinal principle of interpretation of all statutes to find out the natural and grammatical meaning of the words used in them. It is also well settled that when the text is explicit, the text is conclusive. The legislature has deliberately used the words 'or if a suit is remanded on any of the grounds mentioned in Section 351 of the same Code' and we cannot read for these words 'or if a suit is remanded under Section 351 of the same Code'. What the legislature intended by using the words 'on any of the grounds mentioned in Section 351' was to bodily lift the grounds of Section 351 and to make them a part of this provision. They used these words instead of reproducing the grounds mentioned in Section 351 in Section 13 of the Act for legislative convenience because if the language of Section 351 was bodily lifted and placed in Section 13 of the Act. the provision might have become cumbersome and inartistic. The intention of the legislature in using the words 'on any of the grounds mentioned in Section 351' was to make Section 13 of the Act read as follows :--

'If an appeal or plaint which has been rejected by the lower court on any of the grounds mentioned in the Code ol Civil Procedure, is ordered to be received, or in a case where the lower Court shall have disposed of the case upon any preliminary point so as to exclude any evidence of fact which shall appear to the appellate court essential to the rights of the parties and the decree of the lower court upon such preliminary points has been reversed by the decree in appeal, and the appellate court has remanded the case it shall grant to the appellant a cer-tificate authorising him to receive back from the Collector the full amount of lee paid on the memorandum of appeal. But as pointed out earlier, the provision might have become cumbersome and on the ground of convenience instead of bodily lifting the words of Section 351 and putting them in Section 13 of the Act, the legislature adopted the convenient expression 'on any of the grounds mentioned in Section 351.'

It could never have the intention of allowing Section 13 of the Act to be automatically amended in accordance not only with the language of the counter parts of Section 351 in the subsequent Codes, but also in accordance with the local amendments. In the Code of 1859 there was no provision analogous to Section 122 of the present Code with the result that the Sadar Court (also High Court) did not have any power to annul, alter or amend the provisions of the Code. The only power that the Sadar Court (later on the High Court after passing of, the High Courts Act, 1861) had was 'to make and issue general rules for regulating and practice and proceedings of the subordinate Civil Courts, and also to frame forms for every proceeding in the said Courts for which it shall think necessary that a form be provided, and for keeping all books, entries, and accounts to be kept bv the Officers, and from time to time to alter any such rule or form; provided that such rules and forms be not inconsistent with the provisions of this Act (1859 Code) or of any other law in force.' Inasmuch as there was no provision permitting local amendments by High Courts in the Code of 1859 which was in force in 1870, when the Act was passed, Section 13 of the Act could not have visualised the existence of the local amendments made, by the various High Courts in exercise of their powers under Section 122, C. P. C. nor could it have comprehended them in its scope and for this reason apart from others it is not possible to take the view that Section 13 of the Act contemplates the application of Order XLI, Rule 23, C. P. C. as amended by this Court and other Courts.

17. The view that I am taking with regard to the interpretation of Section 13 of the Act finds some support from In re Woods' Estate; Ex Parte Commrs. of Works and Buildings. (1886) 31 Ch. D. 607 where Lord Esher observed at pages 615 and 616:--

'If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and, the moment you have those clauses in the latter Act.you have no occasion to refer to the former Act at all. For all practical purposes, therefore, those sections of the Act of 1840 are to be dealt with as if they were actually in the Act of 1855.'

I also find support from the following observation of Lord Blackburn in Mayor, &c.; of Portsmouth v. Smith, (1885) 10 AC 364 occurring at page 371:--

'Where a single section of an Act of Parliament is introduced into another Act, I think it must be read in the sense which it bore in the original Act from which it is taken, ......'

18. Order XLI, Rule 23, in the form in which it stands in the C. P. C. (un-amended by this Court) is analogous to Section 351 of 1859 Code. I am satisfied that by the use of the words 'on any of the grounds mentioned in Section 351 of the same Code' occurring in Section 13 of the Act all that is intended to provide is 'on the ground that the decree of the lower court disposing of a case on a preliminary point has been reversed by the appellate court.' Therefore, in my opinion court fee can be refunded only in a case which falls under Order XLI. Rule 23 in the unamended form.

19. In my opinion, Section 8(1) of the General Clauses Act cannot be of any help in the case. Section 8(1) of the General Clauses Act reads :--

'Where this Act or any Central Act or Regulation made after the commencement of this Act. repeals and re-enacts with or without modification, any provision of a former enactment, then reference in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.'

This provision would only enable us to read Order XLI. Rule 23, for Section 562 of the 1882 Code in any statute where that section is referred to. but a reference to Section 351 of 1859 Code in other Acts cannot be read as reference to Order XLI, Rule 23. C. P. C. because the Code of 1908 has not repealed the one of 1859 but that of 1882. Besides, Clause 8 of the General Clauses Act talks of a Central Act or Regulation. Section 351 of 1859 Code was a provision in the Central Act. So is Order XLI. Rule 23. but clearly Order XLI. Rule 23 as amended by this Court is only a State amendment made by a State authority (the Allahabad High Court). Section 8 of the General Clauses Act will apply to a provision which has been framed by the Central Legislature. I am doubtful if it can apply to the case of a provision framed not by an authority competent to pass a Central Act or Regulation, but by an authority competent only to make a local or State amendment Again, Section 8 only embodies a rule of interpretation. It can be invoked where there is doubt in the interpretation of any statute. In my opinion there is no occasion for any doubt in the construction of Section 13 of the Act. If the words in Section 13 were 'If a suit is remanded in appeal under Section 351 of the Code of 1859' there could be no remand order after the repeal of that provision and in that case Section 8 of the General Clauses Act could be utilised to read for Section 351 of 1859 Code its corresponding provisions in the succeeding Code one after the other.

20. Reliance has been placed on Section 158 of the present Code. That provision reads:--

'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''.

(Underlined by me (herein ' '))

This provision is analogous to the second part of Section 3 of 1882 Code,which read :--

'..... And when in any Act, Regulation or Notification passed or issued prior to the day on which this Code comes into force, reference is made to Act No. VIII of 1859, Act No. XXIII of 1861, or the 'Code of Civil Procedure,' or to Act No. X of 1877, or to any other Act hereby repealed, such reference shall, so far as may be practicable, be read as applying to this Code or the corresponding part thereof......'

Its corresponding provision in 1877 Code was the second part of Section 3of that Code, which ran:--'.....

But when in any Act, Regulation or Notification passed or issued prior to the day on which this Code comes into force, reference is made to Act VIII of 1859, Act XXIII of 1861, or the 'Code of Civil Procedure', or to any other Act hereby repealed, such reference shall, so far as may be practicable, be read as applying to this Code or the corresponding part thereof......'

The reason why such provisions were made was to maintain the administrabi-lity of the Acts in which reference had been made to provisions of Code which was being repealed. Instead of amending the provisions of all the Acts (the task would have been tremendous if not impossible) in which reference was made to the provisions of the Code which wasbeing repealed by substituting the refer-ence of the repealed Act by the Repealing Act the legislature adopted the convenient device of making a provision like Section 158 C. P. C. (1908). The effect of a provision like this is (to) put in the various Acts the corresponding provision of the Repealing Act in place of the provision of the repealed Act But what we are entitled to read in place of the provision of the repealed Code is the corresponding provision in the repealing Code. Order XLI, Rule 23, as amended by this Court, provides for much more than was contained in Section 562 of 1882 Code.

It cannot, therefore, be treated to bt the correspondng provision of Section 562 of 1882 Code. There cannot be two corresponding provisions to Section 562 of the 1882 Code: one Order XLI, Rule 23 (unamended) and the other the amended Order XLI, Rule 23, specially when the contents of the two very materially differ. The words 'so far as practicable' occurring in Section 158, C. P. C. (1908), clearly suggest that only within practicable limits the rule contained in Section 158, C. P. C. (1908) would bt an-forced. It is not practicable to read the amended Order XLI, Rule 23, for Section 562 of the 1882 Code firstly because the contents of the two very materially differ and secondly because the corresponding provision could be the unamended Order XLI, Rule 23, C. P. C. which is pari materia with Section 562 of 1882 Code and is the provision passed by the legislature, unlike Order XLI, Rule 23 (amended) which has been framed by a delegatee only for local application.

21. The rule contemplated by Section 158 of the present Code is the rule asframed by the Legislature and not theone as framed or amended by the delegatee, the High Court. This becomes apparent by the use of the words 'be takento be made to this Code or 'its' (underlined by me (herein ' ')) corresponding part, Order, Section or Rule.'Note the word 'its'. 'Its' obviouslyrefers to the 'Code'. Therefore, thewords in quotation would read 'be takento be made to this Code or to the corresponding part, Order, Section or Rule ofthis Code.' Order XLI, Rule 23, is of'this Code' but the amended Order XLI,Rule 23, is not of this Code. It is by alegal fiction to be treated of the Codeand would have effect as if it was of theCode.

22. It is significant that in Section 158 the word 'rule' is preceded by the words 'part, order, section or'. 'Part, Order, Section' clearly refer to the part, order and section of the Code as passed by the legislature. Therefore, 'rule' must also refer to rule as passed by the legislature and not to the one framed by the High Court.

22A. Section 127 of the 1908 C. P. C. reads:--

'Rules so made and sanctioned shall be published in the Gazette of India or in the local official Gazette, as the case may be, and shall from the date of publication or from such other date as may be specified have the same force and effect, within the local limits of the jurisdiction of the High Court which made them 'as if they' had been contained in the First Schedule.'

(Underlined by me (herein (' '))

The power to repeal belongs only to a egislature. The combined effect of Sec-dons 122 and 127, C. P. C. (1908), or any of those provisions separately is not to result in the repeal of Order XLI, Rule 23, as passed by the Central Legislature. The amended rule, therefore, does not obliterate the original rule, but permits its eclipse only for the State where it has been amended. Section 127, C. P. C. only introduces a legal fiction, that is, that the amended rule will be deemed ja rule contained in the Code though in fact it is not. This is apparent from the use of the words 'as if they had been contained in the first Schedule.' Section 158, C. P. C. (1908), does not refer to rules which in fact are not rules, but by legal fiction are treated to be rules. True, the rules framed by the High Court will by virtue of Section 127 of the present Code 'have the same force and effect' as the original rules contained in the C, P. C., but they do not for that reason repeal the original rules and themselves become rules, to have a similar effect as another provision is not to make the two provisions the same or one.

23. As Section 127 itself provides the rules amended by the High Courts have only local application, that is, within the jurisdiction of the High Court concerned. Different High Courts can frame different rules for their States and they may materially differ. Those rules may be law within the State, but it is difficult to believe that the rules framed by the State High Courts with their limited application can be comprehended in the expression 'rule' occurring in Section 158 of 1908 Code. I am, therefore, unable to agree that Section 158 C. P. C. (1908) in any way supports the claim of the applicant. In my opinion Section 158 C. P. C. only helps us to read Order XLI, Rule 23, C. P. C. (unamended) in Section 13 of the Act in place of Section 351,

24. It is true that Section 13 of the Act was framed on equitable considerations. The idea perhaps was to give relief to a person by remitting his court fee in respect of a matter which has not been decided by Courts. The principle being that after the remand order, the matter will be decided again and the aggrievedparty will have to pay court fee again in respect of the same matter.

25. In the first place court fee is a tax and the Court Fee Act is a taxing statute. Taxation and equity do not always go hand in hand and while interpreting a taxing statute, considerations of equity are out of place. Some legal principle apart from equity must be brought in aid in support of a claim for the remission or refund of a tax.

26. Secondly there is a difference even with regard to equity in a case covered by Order XLI, Rule 23, (unamended) and the one covered by the amended provision. Whereas in the former case the suit is decided on a preliminary issue and there has been no adjudication in respect of other pleas, in the latter case there has been a complete adjudication on all the pleas by the lower court and the case is remanded on the ground that the interest of justice requires that the matter should be re-heard. In the former case it may be said that a party did not have a return for the court fee he paid, in the latter he had a full return, all his pleas having been adjudicated upon. There is thus a clear difference in the two cases and it would be wrong to say that it would be unjust and illogical to give relief in the first case but not in the second.

27. Learned counsel for the applicant has placed reliance upon 1964 All LJ 868 (supra) and Sohan Singh v. Oriental Bank of Commerce . The first is a decision by a Division Bench of this Court and the second that of the Punjab High Court. The learned Judges who decided 1964 All LJ 868 (supra) went on the provisions of Section 8 of the General Clauses Act and Section 158, C. P. C. I have already given my reasons for holding that these provisions do not apply in the instant case. In (supra) the view taken was that in the first place eection 13 of the Act would cover a case where a remand has been made on ground of 'interest of justice' even though the case may not have been decided by the lower Court on the preliminary point and thus may travel beyond the scope of Order XLI, Rule 23 C. P. C. unamended; secondly, even if Section 13 of the Act did not comprehend a remand on a ground other than contained in Order XLI, Rule 23, C. P. C. unamended, under the inherent powers, a High Court can direct the refund of court fee under Section 13 of the Act. With great respect to the learned Judges, I am unable to agree with them. I have already said earlier that Section 13 of the Act is confined in its operation only to a case where the remand order is made under Order XLI, Rule 23 unamended. I am of the opinion that inherent powers cannot be invoked in a case which is covered -by statute. If Section 13 of the Act did not provide for refund of Court fee in a case where the remand order has been passed on a ground not contained under Order XLI, Rule 23 unamended. the Courts cannot expand its scope or give the relief, which the legislature has not given, in the name of the exercise of its inherent powers.

28. It is well settled that when an Act deals with a particular subject, it is exhaustive on that subject and any relief not given by the Act, cannot be given, (See Ganga Saran v. Firm Ram Charan Ram Gopal : AIR1952SC9 where it was observed 'that to the extent that the Contract Act deals with a particular subject it is exhaustive upon the same.' and also Official Receiver, Jhansi v. Jugal Kishore : AIR1963All459 ).

29. In Sales Tax Officer v. Kanhaiya Lal Mukund Lal Saraf : [1959]1SCR1350 it was observed 'in order to ascertain the true meaning and intent of the provisions, we have got to turn to the very terms of the statute itself, divorced from all considerations as to what was the state of the previous law or the law in England or elsewhere at the time when the statute was enacted. To do otherwise would be to make the law, not to interpret it.'

30. In Munna Lal v. Abir Chand : AIR1958All766 a Full Bench of this Court doubted the existence of the inherent powers to direct refund of court fee. Their Lordships observed:--

'There are cases which have gone to the length of holding that the Court has no inherent powers, at all to order refund of court-fee, and that even if the court fee has been paid inadvertently, the prayer for refund cannot be made in the Civil Court but has to be addressed to the revenue authorities. For instances of such cases reference may be made to Lalta Prasad v. Sheoraj Singh. AIR 1920 All 54; U Po Toke v. U Lu Gyi, AIR 1936 Rang 352 and In re Vedaranya-swamy Devasthanam, AIR 1942 Mad 464, Some observations of Desai. J. in TeJ Bahadur v. Pearey Lal : AIR1957All734 which are in the nature of obiter dicta also indicate the same view.'

31. For the reasons mentioned above I am of the view that the petition of the applicant for the refund of the Court fee should be dismissed. I would direct the parties to bear their own costs.

Pathak, J.

31A. This is an application under Section 13 of the Court Fees Act, 1870, by the appellant in a second appeal for a certificate authorising him to receive back from the Collector the amount of court fee paid on the memorandum of the second appeal.

32. The appellant filed a suit for money. The suit was decreed by the trial court. The lower appellate court on appeal, set aside the decree of the trial Court and dismissed the suit. The appellant proceeded in second appeal to this Court and on January 2, 1967 the Court allowed the appeal, set aside the decree of the lower appellate court and remanded the case to that Court with a direction to re-hear the appeal and to dispose it of in accordance with law. The appellant then filed the instant application. The application came up before G. C. Mathur, J., and reliance was placed by the appellant on 1964 All LJ 868 in support of the proposition that where under the amendment introduced by this Court in Order 41 Rule 23 of the Code of Civil Procedure, the Court remanded the case on the ground that it was in the interest of justice to do so the appellant was entitled to a refund of the court-fee on the memorandum of appeal. G. C. Mathur J. came to the view that the law laid down in Raja Virendra Shah Ju Deo's case, 1964 All LJ 868 required reconsideration, and accordingly the case has been laid before this Full Bench.

33. It is urged by Mr. C. P. Srivas-tava, for the appellant, that Section 13 of the Court Fees Act must be read with Order 41, Rule 23 of the Code of Civil Procedure as amended by this Court, and upon that he contends that the appellant is entitled to a refund of the court-fee paid on the memorandum of the second appeal.

34. The submission on behalf of the State of Uttar Pradesh is that Section 13 of the Court Fees Act must be confined to a case where the suit has been disposed of on a preliminary point and the appellate court has set aside the decree and remanded the case. It cannot be extended, it is said, to a case where the suit has been decided on the merits and the appellate court has set aside the decree and remanded the case on the ground that it is in the interest of justice to do so. The latter ground, it is pointed out, was added by this Court and cannot be said to constitute one of the grounds contemplated by Section 13 of the Court Fees Act 35. Section 13 of the Court Fees Actprovides:

'If an appeal or plaint which has been rejected by the lower court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received, or if a suit is remanded in appeal on any of the grounds mentioned in Section 351 of the same Code for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate, authorising him to receive back from the Collector the full amount of fee paid on the memorandum of appeal;

Provided that if, in the case of a remand in appeal, the order of remand shall not cover the whole of the subiect-matter of the suit, the certificate so granted shall not authorise the appellant to receive back more than so much fee as would have been originally payable on the part or parts of such subject-matter in respect whereof the suit has been remanded.'

36. We are concerned with the second category of cases contemplated by Section 13. The section speaks of a suit remanded in appeal 'on any of the grounds mentioned in Section 351 of the same Code for a second decision by the lower court.' The Code referred to here is the Code of Civil Procedure, 1859, because that was the operative Code at the time when the Court Fees Act was enacted in 1870. The dispute between the parties must be resolved by determining whether any of the grounds mentioned in Section 351 of the Code of Civil Procedure. 1859 can include the ground that the case should be remanded in the interest of justice.

37. At the time when the Court Fees Act was framed, Section 351 of the Code of Civil Procedure, 1859 read as follows:--

'If the Lower Court shall have disposed of the case upon any preliminary point so as to exclude any evidence of fact which shall appear to the Appellate Court essential to the rights of the parties, and the decree of the Lower Court upon such preliminary point shall be reversed by the decree in appeal, the Appellate Court may, if it thinks right remand the case, together with a copv of the decree in appeal, to the Lower Court, with directions to restore the suit to its original number in the Register, and proceed to investigate the merits of the case, and pass a decree therein.'

38. The Code of 1859 was repealed and replaced by the Code of Civil Procedure, 1877. Section 562 of the Code of 1877 was in terms almost identical with Section 351 of the earlier Code. The Code of 1877 was in turn repealed and replaced by the Code of Civil Procedure, 1882. and contained a corresponding provision in Section 562. Then the Code of 1882 was repealed and replaced by the present Code of Civil Procedure. Corresponding to Section 562 of the Code of 1882 is Order 41, Rule 23 of the present Code which, when the Code was framed, read as follows:

'Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate Court may, if it thinks fit, by order remand the case .....'

39. It will appear that substantially the terms of Order 41, Rule 23 correspond to those contained in Section 351 of the Code of 1859 except that the words 'so as to exclude any evidence of fact which shall appear to the Appellate Court essential to the rights of the parties' occurring in Section 351 have been omitted. On June 1, 1957 this Court, in pursuance of the powers conferred by Section 122 of the Code of 1908 amended Order 41, Rule 23 and empowered the Court to remand a case in appeal on the ground also that it was necessary in the interest of justice to do so.

40. There is no dispute between the parties that when reading Section 13 of! the Court Fees Act the reference therein to Section 351 of the Code of 1859 must be construed as a reference to Order 41, Rule 23 of the Code of 1908. The controversy before us centres round the question whether the amendment effected by this Court in Order 41, Rule 23 of the Code of 1908 can be read when applying Section 13 of the Court Fees Act. It is urged by the appellant that Section 13 of the Court Fees Act contemplates that there can be more than one ground on which a suit is remanded in appeal and. it is contended, that inasmuch as there was only one ground upon which the suit could be remanded under Section 351 of the Code of 1859 the Legislature, when framing Section 13 of the Court Fees Act, must have contemplated additional grounds for remand brought into the Code by amendments introduced by the High Courts. I cannot accept the contentioa The argument presupposes that at the time when Section 13 of the Court Fees Act was framed, there was power in the High Courts to amend the provisions of the Code.

I have examined the provisions of the Code of 1859 and I have been unable to discover any such power. That power, was vested in the High Courts, it ap-pears, for the first time by Section 122 of the Code of 1908. It was certainly not contained in the Code of 1859 and that was the Code, as I have pointed out, which governed civil procedure when the Court Fees Act was enacted. It is not possible to contemplate that when the Legislature framed Section 13 of the Court Fees Act, it could have had in mind that subsequently almost four decades later there would be a Code which would confer such power upon the High Courts. Far less could it have contemplated that still a half century thereafter a High Court would so amend the power to remand a suit in appeal as to add to further ground in which the power of remand may be exercised. It is not possible for me to accept the submission of the appellant that when Section 13 of the Court Fees Act was framed the Legislature had in mind the grounds introduced by the amendment made by this Court in Order 41, Rule 23 of the Code of 1908. In my opinion, the grounds which the Legislature can be said to have had in mind are those which must be discovered within the scope of Section 351 of the Code of 1859 alone.

41. The next question which arises upon the submissions before us is whether by the operation of Section 8(1) of the General Clauses Act, 1897, it can be said that Order 41, Rule 23 as amended by this Court must be read, where reference is made to Section 351 of the Code of 1859, in Section 13 of the Court Fees Act. Section 8(1) of the General Clauses Act provides:--

'Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.'

It appears to me that Section 8(1) of the General Clauses Act, 1897 can be of no assistance in this case. The Code of 1908, it is true, was enacted after the General Clauses Act was brought into operation. But it repealed and enacted in Order 41, Rule 23 the provisions of Section 562 of the Code of 1882. The Code of 1908 did not repeal the Code of 1859. However, in view of the opinion, which I now proceed to set out in respect of the remaining contention of the appellant, it is not necessary for me to express myself finally as to the operation of Section 8(1) of the General Clauses Act

42. The appellant relies upon Section 158 of the Code of 1908. Section 158 reads:--

'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.'

The submissions of the parties have proceeded on the basis that when Section 13 of the Court Fees Act refers to Section 351 of the Code of 1859 it must be taken, by reason of Section 158 of the Code of 1908, to refer to Order 41, Rule 23 of the latter Code, The question is whether the reference to Order 41, Rule 23 will also include the amendment in that rule introduced by this Court. Therespondent says that it cannot because an amendment made by the High Court under Section 122 of the Code is not a rule contained in the Code. It is urged that it is only by virtue of Section 127 that it is to be deemed by legal fiction to be contained in the First Schedule, and that again solely for the purpose of construing its force and effect The amendment, it is said, is not part of the Code and our attention has been drawn to Section 128 which provides that the rules made by the High Court 'shall be not inconsistent with the provisions in the body of this Code.'

43. To appreciate these submissions comprehensively, it will be necessary t(r) digress somewhat and examine the organic structure of the Code of 1908.

44. The Code of Civil Procedure, 1908 is an Act which consists of a number of sections and rules. The first eight sections are grouped together as 'Preliminary' and the remaining are arranged into parts. The rules are comprised in five Schedules. We are concerned only with the first Schedule, which indeed is the only one which remains after the repeal of the others. The First Schedule consists of a number of rules arranged into Orders. Apart from the rules contained in the First Schedule, Sections 122 and 125 confer power upon the High Courts to make rules.

45. The word 'Code', wherever used in the Act, is defined by Section 2(1) as including rules. Section 2(18) defines 'rules' to mean 'rules and forms contained in the First Schedule or made under Section 122 or Section 125.' It is clear that wherever the word 'Code' is used in the Act of 1908, it includes not only the sections comprised in it but also rules and forms contained in the First Schedule as well as the rules and forms made by the High Courts under Section 122 or Section 125, It will be found that the Act used both expressions 'Code' and 'body of the Code'. The expression 'body of the Code' is not defined. But upon an analysis of the several provisions of the Act it will be clear that the expression 'body of the Code' is employed only where reference is intended to the sections of the Act. That that is so will appear from a perusal of the provisions of Sections 7, 8, 96, 100, 104, 121 and 128.

46. The sections mentioned above are jurisdictional provisions and having regard to their subject-matter the expression 'body of the Code' can refer to the sections only and not to the rules. The conclusion is reinforced if regard is had to Section 121 and Section 128. Section 121 declares that the rules in the First Schedule shall have effect 'as if enacted in the body of this Code'. Section 128 provides that the rules made by the High Court 'shall be not inconsistent with the provisions in the body of this Code,' which rules by Section 127 are deemed to have the same force and effect as if they had been contained in the First Schedule. It is clear from Sections 121 and 128 that the rules contained in the First Schedule and the rules framed by the High Courts are in fact outside the 'body of the Code'. The sections alone therefore comprise the 'body of the Code'

47. The word 'Code' has been used in different sections of the Act, and it will be apparent from the several provisions wherever the word occurs that reference is intended not merely to the sections of the Act but to the entire Code, which includes the rules in the First Schedule and the rules made by the High Courts. I have examined the several Sections of the Act where the word 'Code' has been used. Some of them are Sections 5, 12, 29, 36, 43, 44, 62, 67, 36, 97, 104, 105, 107, 108, 112, 114, 117, 119, 129, 132, 134, 136, 137, 141, 142, 143, 146, 148, 151, 157 and 158. In none of these can it be said that reference is intended merely to the sections of the Act and not to the rules also. In a Full Bench decision of the Madras High Court reported in Bademian Saheb v. Jankan Saheb, AIR 1938 Mad 438 Leach, C. J., who spoke for the Court, observed;

'Section 2(1) makes it clear that the Code Includes the rules in Schedule 1. Therefore Order 21, Rule 17 is as much as a part of the Code as the sections forming the body of the Act.'

Now, what is of significance is that the sections of the Act, namely the 'body of the Code', can be altered by legisla-tion only. Legislation may be effected by Parliament or by a State Legislature. The sections cannot be altered or amended by the High Courts. In that sense the 'body of the Code' consists of provisions which are fundamental and less easily amenable to amendment than the rules contained in the First Schedule. The sections enjoy a certain status and a related degree of permanency denied to the rules contained in the First Schedule which can be annulled, altered or added to by rules made by the High Courts under Section 122. The power to annul, modify or add to the rules contained in the First Schedule has been conferred upon the High Court for the purpose of answering local needs and adapting the First Schedule to effectively serve that purpose. It was pointed out by Sir Lawrence Jenkins, C. J. in Mani Mohan Mandal v. Ramtaran Mandal, AIR 1917 Cal 657:

'The body of the Code is fundamental and is unalterable except by the Legislature; the rules are concerned with details and machinery and can be more readily altered. Thus it will be found that the body of the Code creates jurisdiction while the rules indicate the mode in which it is to be exercised. It follows that the body of the Code is expressed in more general terms, but it has to be read in conjunction with the more particular provisions of the rules.'

This Court examined the question in Karam Singh v. Kunwar Sen, AIR 1942 All 387 and Allsop, J. said:

'It is manifest that the Civil Procedure Code was framed in its present form, namely in the form of an Act with schedules attached so as to give greater elasticity to the rules of procedure. The main body of the Act sets forth the fundamental principles which are variable only by the Legislature itself. The rules in Sch. I deal with matters of detail which are variable at the instance of the various High Courts with the previous approval of certain other authorities.'

To the same effect are the observations in Trimbak Bhikaji v. Dhonappa Nara-yanappa, AIR 1945 Nag 83 at p. 85 where the learned Judges referred to the observations in Mani Mohan's case and Karam Singh's case. Reference was also made by them to a Full Bench decision of the Calcutta High Court in Abdul Karim Abu Ahmad Khan v. Allahabad Bank, Ltd., AIR 1917 Cal 44. Comparatively recent cases in which similar observations have been made are Sheshgiridas Shan-bhag v. Sunderrap AIR 1946 Bom 361, Laxmikumar Srinivas Das v. Krishnaram Baldeo Bank, Lashkar, AIR 1954 Madh B. 156 and Satyanarayana v. Venkata Subbiah AIR 1957 Andh Pra 172 (FB).

48. Section 121 declares:

'The rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part.' and Section 127 provides: 'Rules (i. e. Rules made by a High Court) so made and approved shall be published in the official Gazette and shall from the date of publication or from such other date as may be specified have the same force and effect, within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the First Schedule.'

It was not necessary to enact these provisions for the purpose of deeming that the rules contained in the First Schedule or made by the High Courts are part of the Code. That purpose was completely achieved by Section 2(1) read with Section 2(18) of the Code. The object in enacting Sections 121 and 127 was entirely different By Section 122 theHigh Courts were empowered to make rules annulling, altering or adding to the rules in the First Schedule, and in order that the rules framed by the High Courts should have the same force and effect as the rules which they removed, amended or supplemented the Legislature enacted Section 127. It provided that the rules framed by the High Courts would have the same force and effect as if they had been contained in the First Schedule. They would have the same force although they were framed by the High Courts and not by the Legislature. In other words, they would have the same status in law as the rules contained in the First Schedule. They would also have the same effect, namely, that as regards legal consequences they would be at parity with the rules contained in the First Schedule. Thus, it might fairly be inferred that in regard to their force and effect the rules framed by the High Courts are assimilated into the First Schedule.49. Now, by virtue of Section 121 the rules in the First Schedule have effect as if enacted in the body of the Code. Accordingly, the rules contained in the First Schedule as well as the rules framed by the High Courts must be considered in their effect as if they are further provisions in the body of the Code. With Section 128 safeguarding that the rules framed by the High Courts would not be inconsistent with the Section of the Code, the Legislature provided a harmonious balance between the sections, the rules in the First Schedule, and the rules framed by the High Courts. The mutual relationship in which these three classified categories of law have been placed demonstrates the organic unity running through the entire content of the Code.

50. In my opinion when Section 158 speaks of the 'corresponding rule' of the Code of 1908 it refers to the rule in the First Schedule as amended, supplemented or replaced by the rule framed by the High Court. It is not possible for me to come to a contrary conclusion. There is no ground for limiting the reference in Section 13 of the Court Fees Act to those provisions only of Order 41, Rule 23 which were originally enacted in the First Schedule. The terms of Section 158 are wide enough to refer to the entire sweep of the rule. There is nothing in the terms of Section 158 which limits the reference to the rule to the terms in which it was originally enacted. Then, it must be remembered that under Section 122 the High Court has power not merely to add to the rules in the First Schedule but also to alter them as well as to annul them. Consider a case whether Order 41, Rule 23 is altered by the High Court by substituting altogether different grounds for remand in place of the original provision. Can itbe contended that the altered provision of Order 41, Rule 23 cannot now be referred to when applying Section 13 of the Court Fees Act? If the contention is that it cannot, it would lead to the unacceptable conclusion that in matters of remand Section 13 cannot operate within the jurisdiction of that Court. If that conclusion is not possible where the grounds originally enacted in Order 41. Rule 23 have been completely substituted by new grounds, there is no reason why there should be any difference in principle when the grounds have been added to by the High Court.

51. There is another consideration upon which I find myself, for the purpose of applying Section 13 of the Court Fees Act, unable to limit the reference, to Order 41, Rule 23 to its original provisions. The object behind Section 13 appears to be that court fee should be levied only once in the progress of a suit from the lower court to the appellate court even though the case is remanded, for re-trial and the movement to the appellate court repeated. It appears to be intended that the litigant should be relieved of the burden of court fee in obtaining the removal of an erroneous decision of the lower court and a retrial of the case. That is also demonstrated by the terms of the proviso to Section 13 which limit the refund of the Court fee to that part of the subject matter in respect of which the suit is remanded. Now, if a refund of the court-fee is available when the case is remanded because the appellate court disagrees with the disposal of the suit by the lower court on the preliminary point, 1 am unable to discern any reason why the same right should not be recognised in an appellant if the appellate court finds it necessary to remand the case on any other ground. The remand of the case for retrial is. I think, the material event entitling the appellant to a refund of the court fee. It is immaterial that the remand has been ordered for one reason or another.

52. But the respondent says that if Order 41, Rule 23, when referred to in Section 13 of the Court Fees Act, is taken to include an amendment effected by the High Court, the construction will offend against the rule that the words in a Central Act cannot be so construed as to bear a different meaning in different parts of the country. Reference has been made to : AIR1963All433 . It seems to me that the rule is not attracted in the instant case. There is no question here of giving a different meaning to Section 13 in different parts of the land. Wherever Section 13 is read, no matter in which State of India, the reference to Section 351 of the Code of 1859 must be read as a reference to Order 41. Rule 23 of the Code of 1908. The language of sec-tion 13 fa uniform in its meaning throughout the territories of India. It must be taken as referring to Order 41. Rule 23. Now, the reference to Order 41 Rule 23 does not make that rule an integral part of Section 13 as if it were incorporated in it. All that it means is that when you apply Section 13 you must read Order 41, Rule 23 to discover the grounds for remand contemplated by it. The benefit of Section 13 will vary from State to State according to the terms of Order 41, Rule 23 in each State. That Variance arises not because of any different meaning assigned to the provisions of Section 13. It follows from the language of Order 41, Rule 23. The difference turns not on what Section 13 says but on how Order 41, Rule 23 reads.

53. For all these reasons, I am ofopinion that an appellant is entitled to arefund of the court fee paid on thememorandum of appeal whenever theappeal is. remanded under Order 41,Rule 23 as amended by this Court. In myjudgment the statement of the law tothis effect in 1964 All LJ 868 accords tothe true position in law. The applicationof the appellant under Section 13 of theCourt Fees Act should be allowed withcosts.

A.K. Kirty, J.

54. I agree with the opinion of my learned brother Pathak J. and his reasonings. I, however, do not consider it necessary to go into question of the applicability of Section 8(1) of the General Clauses Act or to give my opinion thereon,

BY THE COURT

55. In view of the opinion of the majority, the appellant is entitled to a refund of the amount of Court fee paid by him on the memorandum of Second Appeal, The application is allowed with costs.


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