1. This order will dispose of Civil Miscellaneous Nos. 594/C-I and 595 /C-I of 1980 which contain the same question of law. The facts in the order are being given from C. M. No. 594/C-I of 1980.
2. M/s I. T. C Limited-respondent No. 1 instituted a suit for recovery of rupees 25 lakhs and oddagainst the petitioners and J. L. Bhatia, respondent No. 2 in the Court of Sub-Judge 1st Class, Ludhiana. The suit was decreed against the petitioners on the ground that Mr. Gordhan K. Bhatia failed to appear in pursuance of the order of the Court. The petitioners came up in appeal against the judgment and decree of the trial Court to this court which was accepted by me vide judgment dated January 29, 1980 and the case was remanded to the trial Court for deciding the matter afresh after recording the statement of Mr. Bhatia. The petitioners have now filed an application under Section 13 of the Court fees. Act (hereinafter referred to as the Act) for issuing a certificate authorising them to receive back from the Collector the full amount of court fee stamp paid on the memorandum of appeal.
3. It is contended by the learned counsel for the petitioners that the case was remanded by this Court under Order 41 Rule 23-A of the code of Civil Procedure 1908(hereinafter referred to as the Code) for deciding the matter afresh. According to him, the petitioners are entitled to the refund of the Court-fee under Section 13 of the Act as the case has been remanded by this Court.
4. I have given due consideration to the argument of the learned counsel for the petitioners and find force in his contention. Section 13 of the Act relates to refund of fee paid on memorandum of appeal. Its relevant portion reads as follows:--
'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, authorizing him to receive back from the Collector the full amount of fee paid on the memorandum of appeal.'
From a reading of the section it is evident that if a case is remanded under Section 351 of the Code the appellant becomes entitled to the refund of the Court-fee. The Code of Civil Procedure which was in force at the time of enactment of the Court-fees Act was that of 1859. The equivalent provision of Section 351 in the Code of Civil Procedure in force now are O. 41 Rules 23 and 23-A.Therefore, if case is remanded under Order 41 Rule 23 or 23-A, the appellant is entitled to refund of the court -fee under Section 13 of the Act.
5. In the aforesaid view, I am fortified by the observations of the Supreme Court in State of Utter Pradesh v. Chandra Bhushan Misra, AIR 1980 SC 591. That appeal was against a decision of the Allahabad High Court. The Allahabad High Court had amended Rule 23 of Order 41 and had incorporated in it that if the appellate court while reversing or setting aside the decree under appeal considered it necessary in the interest of justice to remand the case, it may do so. The amended Rule reads 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, 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.'
The Supreme Court held that the amendment of the Rule shall be deemed to be amendment in the code and the appellant shall be entitled to the refund of the court-fee even though the remand has been made under the amended portion of the Rule. The relevant observation of O. Chinnappa Reddy, J., speaking for the Bench are as follows:--
' Refund of Court-fee paid in appeal can be ordered under Section 13 of the Court-fees Act even where the remand is made in the interest of justice as provided by the provisions of Order 41, Rule 23 as amended by the High Court of Allahabad. The provisions of Section 2(1), 2(18), 121, 122 and 127, C.P.C. make it abundantly clear that the Rules made by a High Court altering the rules contained in the first schedule as originally enacted by the legislature shall have the same force and effect as it 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 Section 121, 122 and 127. Therefore it cannot be said that the reference to any provision of the code of Civil Procedure 1908 pursuant to section 158 of the code must be to a provision occurring in the body of the main Code consisting of the provisions from Section 1 to Section 158 and not to the provision of the rules in the first schedule.
'It cannot also be said 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.'
After the amendment of the code of Civil Procedure, 1908 by the Code of Civil Procedure (Amendment) Act 1976, Rules 23-A has been incorporated in the Code which is to the same effect as was the amendment incorporated by the Allahabad High Court under Rule 23 of Order 41.
Order 41, R. 23-A reads as follows:--
'Where the court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, ad the decree, is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.'
Similar amendment was made by this Court and Rule 23-A had earlier been incorporated in the Code of 1908. In view of the observation by the Supreme Court if Section 13 of the Act is read along with Rule 23-A of the Code of 1908, the appellants are entitled to refund of the Court-fee because the decree was reversed by the appellate Court and retrial was considered necessary by it. A contrary view had been taken by this Court in Jawahar Singh Sobha Singh v. Union of India, AIR 1958 Punj 38 and Krishan Sarup Oberoi v. Ram Niwas AIR 1975 Punj and Har 22. The aforesaid judgments, however, are impliedly overruled by the Supreme Court in Chandra Bhushan Misra's case (AIR 1980 SC 591)(supra).
6. No other argument was raised in Civil Miscellaneous No. 595/C-I of 1980.
7. For the aforesaid reasons, I accept the petitions and direct that necessary certificate authorising the petitioners to receive back from the collector the full amount of court-fee on the memorandum of appeal as contemplated by Section 13 of the Act, be issued to them. No costs.
8. Petition allowed.