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Vallabh Das Gupta and ors. Vs. Smt. Geeta Bai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal Nos. 228, 230 and 231 of 2003
Judge
Reported in2004(3)MPHT89; 2004(3)MPLJ37
ActsCode of Civil Procedure (CPC) , 1908 - Sections 89 and 89(1); Court Act, 1870 - Sections 16, 1B and 35; Legal Services Authorities Act, 1987
AppellantVallabh Das Gupta and ors.
RespondentSmt. Geeta Bai
Appellant AdvocateD.D. Bansal, Adv.;S.B. Mishra, Additional Adv. General
Respondent AdvocateR.D. Jain, Sr. Adv. and ;D.P.S. Bhadoria, Adv.
Excerpt:
- - this amount will include the interest as well as cost of the litigation......context memorandum of appeal shall include memorandum of cross-objection and suit shall include an appeal from a decree.'7. under section 1-b it is provided that unless there is anything repugnant in the subject or context memorandum of appeal shall include memorandum of cross-objection. it may be mentioned that appeal is continuation of suit. section 89 in the code of civil procedure was inserted in the code of civil procedure. provision of section 16 also inserted in the court fees act by virtue of code of civil procedure (amendment) act, 1999 w.e.f. 1-7-2002. this amendment has been inserted by act no, 46 of 1999 under section 34 and it came into force when the amended code of civil procedure and section 89 came into force.8. only question in this case is whether the court fee can be.....
Judgment:

S.S. Jha, J.

1. This case was referred under Section 89 to Shri T.C. Singhal, Advocate to mediate and help the parties to arrive at an amicable solution. After reference mediator arrange mediation talks between the parties and after the mediation sittings parties had settled their case in all the three appeals. In all the three cases decree for Rs. 9,69,198/- was passed against all the appellants. On mediation the appellants agreed to pay Rs. 7,70,000/- to the plaint/decree holder. Plaintiff has agreed to give up his claim for Rs. 1,99,198/- and accepted the amount of Rs. 7,70,000/- as full and final settlement of the case.

2. Counsel for the parties appearing in this appeal states that the parties have arrived at the aforesaid settlement with the aid of mediator Shri T.C. Singhal, Advocate.

3. Considering the facts of the case the combined decree in all the three suits is modified to Rs. 7,70,000/-. The amount has been paid. This amount will include the interest as well as cost of the litigation. In F.A. No. 228/2003 decree was for Rs. 1,00,000/- with interest @ 12% w.e.f. 30th January, 1993 plus interest of Rs. 15,444.50. This decree was passed on 8-8-2003. Similarly in First Appeal No. 230/2003 similar decree was passed and in First Appeal No. 231/2003 decree of Rs. 2,00,000/- with interest @ 12% p.a. w.e.f. 30th January, 1993 and appellant was further required to pay Rs. 24,951.25 towards interest prior to 30-1-1993. This decree was passed on 8th August, 2003. Now parties have settled the dispute in all the three cases. Therefore, decree in all the three cases is modified and it is directed that against the decree sum of Rs. 7,70,000/- is received by plaintiff as full and final settlement and the plaintiff has given up his claim to remaining amount. Decree be modified accordingly.

4. Appellants have moved another application under Section 16 of the Court Fees Act and submitted that appellant is entitled for refund of Court Fees. He referred to the provisions of Section 16 of the Court Fees Act, 1870. Section 16 has been inserted by Act No. 46/99, which has come into force w.e.f. 1-7-2002. Newly inserted Section 16 is reproduced below :--

'Section 16. Where the matter is referred for settlement of dispute under Section 89 of the Code of Civil Procedure, then plaintiff shall be entitled to a certificate from the Court authorising him to receive back from the Collector, the full amount he paid in respect of such plaint.'

5. Only question involved in the case is when a suit is settled in an appeal under the provisions of Section 89 of the Code, whether the appellant is entitled for refund of Court fees ?

6. We have heard the Counsel for the parties. Section 1B of the Courts Fees Act is reproduced below :--

'Section 1-B. Definition of Memorandum of cross-objection.-- In this Act, unless there is anything repugnant in the subject or context memorandum of appeal shall include memorandum of cross-objection and suit shall include an appeal from a decree.'

7. Under Section 1-B it is provided that unless there is anything repugnant in the subject or context memorandum of appeal shall include memorandum of cross-objection. It may be mentioned that appeal is continuation of suit. Section 89 in the Code of Civil Procedure was inserted in the Code of Civil Procedure. Provision of Section 16 also inserted in the Court Fees Act by virtue of Code of Civil Procedure (Amendment) Act, 1999 w.e.f. 1-7-2002. This amendment has been inserted by Act No, 46 of 1999 under Section 34 and it came into force when the amended Code of Civil Procedure and Section 89 came into force.

8. Only question in this case is whether the Court fee can be refunded in the appeal.

9. Considering the facts of the case and the fact that appeal is continuation of suit and the intention of legislature is to promote settlement outside the Court, we hold that since the appeal is continuation of suit and parties had settled at appellate stage, provisions of Section 89 are applicable to appeal. Notification dated 10th April, 1987 of the State Government under Section 35 of the Court Fees Act is reproduced below :--

'Notification F-No. 9-1-86-B-XXI, dated the 10th April, 1987.-- In exercise of the powers conferred by Section 35 of the Court Fees Act, 1870 (No. 7 of 1870) the State Government thereby remits in whole of the State of Madhya Pradesh the Court tees payable--

(1) On the application made to a Court of competent jurisdiction--

(a) for passing a decree in terms of compromise arrived at before or through the instrumentality of Lok Adalat;

(b) for recording an adjustment of decree or order when proceed by a settlement or compromise in writing arrived at before or through the instrumentality of Lok Adalat;

(c) for compounding an offence under the, provisions of Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force as a result of a compromise arrived at before or through the instrumentality of Lok Adalat; and

(2) On a plaint drawn in terms of the compromise arrived at before or through the instrumentality of Lok Adalat filed before a Court of competent jurisdiction.

(3) In case of settlement of a case pending before a Competent Court is made through the instrumentality of Lok Adalat, the party shall be entitled to refund of the Court fees already paid by him.

2. This Notification shall be deemed to have come into force with effect from the 19th November, 1985.'

11. This Notification under Section 35 further provides that in case of settlement of a case pending before a Competent Court is made through the instrumentality of Lok Adalat filed before a Court of competent jurisdiction, then entire Court fees paid shall be remitted to the parties. Section 89(1)(c) provides that any settlement under this Section shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act.

12. In the light of the aforesaid provisions of Section 89 and the Notification of the State Government referred above, the appellant is entitled for refund of Court fees. The Court fees be refunded to the appellant and certificate of refund be issued to the appellant. Appeals are disposed of. Parties to bear their own cost.


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