\° ..-••" ; ^ ^^"K^ -..^'^r^1^^^-' ^••••^^•V'^';LO..^'--""- ^ t48-""-^.T.W\.l-V ^) O f"'.^s^^ \^-':"' y<e! ^.\.-- <s«"lsLE BPtef-u IN THE HIGH COURT OF 3UDICATURE CHHAmSGARH C-^ \v^s~?^ AT BILASPUR W.P.(C) No. /^ 9^ 72010 PETITIONER ^inwjlEfc- Ashok Kumar Jain Son of Late Vimal Chand Jain, aged about 50 years, R/o. Heera-Moti Line, Rajnandgaon, District - Rajnandgaon (C.G.) VERSUS RESPONDENTS 1. State of Chhattisgarh, Through : The Chief Secretary, Mantralaya, D.K.S. Bhawan, Raipur, 2. Dinesh Kumar, Son of Late Uttam, Lal Dewangan, aged about 36 years, Chandra Kishore, Son of Late Uttam Lal Dewangan, aged about 32 years, Both R/o. Durga Chowk, Town and District - Rajn^ndgaon (C.G.). .-"' ^" WRIT PETITION U/A. 226/227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF MANDAMUS, AGAINSTTHE RESPONDENTS jj' .•'- K s / ff •^'^y ^ ^ H16H COURT OF CHHATTiSGARH : BILASPUR WRiT PETiTION (Ci N0.167/2010 PETiTIONER Ashok Kumar «lain Versus RESPONDENTS State of Chhattisgarh and 2 oftere Sinaie Bench: Hon'bie ShELManjndra MohanShrivastaya.J, Present: - Shri V.K.Sharma, counse! for t'ne petitioner. Shri Sanjeev Kumar Agrawal, Panel Lawyer for the State on aeivance copy. (Passed on 9th day of April, 2010) This petition under Articie 226/227 of the Constitution or india has been flied by the petitioner assaiiing iegaiity and validity of order d-ated 1/08<"200S (Annexure P-4) by which District Judge, Rajnandgaon has rejected petitioner's application under Section 89 of Civil Procedure Code for refund of court fees. 2. Petitioner instituted a suit No.14-A/08 against respondents for specific performance of contract and aiso for possession in the Court of District Judge, Rajnandgaon. On the vaiuation of the suit, piaintiff affixed court fees of Rs.1,49.400/-. During the pendency of the case, as parties intended to arrive at the settiement, an appiication was jointty moved by the parties for referrtng the case to the Lok Adaiat. tn the Lok Adalat heid on 5/07/20(»,neither counsei for the petitioner nor the petitioner was present. The case was ttiereafter taken on 6/u7/09 before ths District Judge and the District Judge allowed Vne application for compromise in the suit and passed judgment decree on 28/07/09 (Annexune P-2). As the court rees was not refunded, the petitloner moved an appiication m under SecUon 89 of the Civii Procedure Code on 31/07/08 for refund of court fees which has been rejected by impugned order dated 1/08/09 (Annexure P-4). 3. Questioning the correctness of impugned order dated 1/08/09, iearned counsei for the petitioner submits that where the settlement between the parties resuite in passing of compromise decree, the enUre court fees is iiabie to be refunded, in view of the provisions contained in Secfrion 89 (1) (c) of the Civil Procedure Code, which provides that any setttement under Section 89 shali deerned to be settfed by ait Lok Adaiats and provisions of Legal Services Authority shaii apply as if the dispute was referred to Lok Adalat. It is aiso submitted that under Section 35 of ttie Court Fees Act, 1870 the State Government is empowered to remit court fees in case where decree is passed in terms of comprornise arrived at between the parties. The other subroission oftte learned counsei for the petitioner is that in the present case, though on the date case was fixed before the Lok Adalat, petitioner and his counsel couid not attend Luk Adaiat, ieamed District Judge ought to have again referred the case to Lok Adaiat instead of itseif passing compromise decree in twms of compromise arrh/ed at betw'een the parties. 4. A perusal of impugned order dated V8S09 passed by the Districd Judge reveais that the case was listed before t'ne Court on 28/07i'09 Tor consideration of intertm appiication No.3 under Order 7 Ruie 14 CPC. Plainliff and defendants submitted through their counsei that as the parties have arroed at settiement, a compromlse decree may be passed. There upon the ieamed District Judge recording the evidenee of the parties passed compromise judgment decree. it has aiso been recorded in the order dated 28/07/09 that noiie of the parties m-ade any orai prayer nor fiied any appiication to again refer the case to Lofc Adatat. As both the parties prayed that they have amved at a comprornise, the decree in terms of the said compromise may be passed. Leamed Court beiow has heid that the decree passed by the Court in such a situatton cannot be termed as one passed by Lok Adaiat. On aforesaid consideration, petitioner's appiication Tor refund of court fee has been rejected. Relying on the deciston of Supreme Court in Uie case of B.P. Moideen Sevamandir and another Vs. A.M. Kutty Hassan 2009 (2) SCC 198, iearned counsel for the pefiUoner submits that the leamed District Judge instead of itself passing a compromise decree ought to have referred the case to Lok Adaiat. Reiying upon another decislon of the High Court of Madhya Pradesh in the case of Valiabh Das Vs. Qeeta Bai 2004 (3) MPU 37, it has been contended that even though a compromise decree was passed by the Dish-ict Judge, petitioner was entiUed to refund of court fees. 5. i have considered the submission made by the learned counsel for the petitioner. This is petitioner's own case that an application for refemng the case to Lok Adaiat was made on 18/06/09. Thereafter, ihfi! case was sent ror consideratjon in Lok Adaiat scheduied to be held on 517109. it is not in dispute that on 5107iGQ, petitioner and his counsei both were not present when the case was taken up by the Lok Adaiat. On that day, the case was, thsrefore, sent back to the reguiar court. When ths case was taken up on S/07/09 before the District Judge, parties were represented by their respective counsei and the case was adjoumed to 28/07/09 for arguments on i.A.No.3. On 28/07/OS, ttie apptication for settiement was considered and the statements were recorded. On the basis of^ettiement arrived at between the parties, a compromise decree was passed. This is reflected from the certified copy of the order sheet flied by the petitioner before this Court. . Neither on 61071W nor on 28/07/09 petitioner or his counsei 4 prayed for taklng any proceedings under Section 89 of the Civii Pcocedure Code rnuch iess prayer for referring the case to Lok Adaiat. 6. it woufd be worthwhiie to note that ^arlier, on applicatfon rnade for referring the case to Lok Adalat, the teamed District Judge/Trial Court, had referred to Lok Adaiat. However, when neither petitioner nor his counsei appeared before the Lok Adaiat, Lok Adaiat recorded that as both the parties or their counsel are not present, no compromise could be arriv«l at. Petin'oner ciaims refund of court fees on the basis that as the decree was passed on the basis of compromise arrived at between the parties therefore it amounte to disposai of the case under Sectlon 89 of the Civil Procedure Code and accordingly, he is entitled to reftind. From the Impugned order passed by tha tearned District Judge it is reflected that the parties have settied their dispute. The compromise decree passed by ttie District Judge cannot be said to be settiement of dispute outside the Court as the settiement has not been arrived at in a proceeding before any of the authorities/fora to whom reference couid ba made by the Court in the manner prescribed therein. Though the case was referred to Lok Adaiat, Lok Adaiat recorded that no compromise couid be arnved at due to absence of the parties and therefore the case was referred back to tlie regular court wherein a compromise decree was passed. In the case of B.P. Moideen Sevamandir and another Vs. A.M.KuUy Hassan 2009 (2) SCC 198 Supreme Court has held that having regard to Section 89 of the Civll Procedure Code, it is the duty of Court to ensure at parties have recouree to the altemative dispute resolution processes and to encourage litigante to setUe thair -disputes in an amicabie manner. it has aiso been obsewed that there shouid be no pressure, force, coeroion or threat to the iitigants to settle disputas against their wishes. in the .present case at the first instance, when an application for ./'"^ ^ i t^dssli 1 "vse/./ '<%®? ^sss^is'f' refemng the case to Lok Adaiat was made stating that parti^ intended to airive at amicable settiement, leamed District Judge referred the casa to the Lok Adaiat but the petitioner or his counsei did not appear before the Lok AdaSat. EveFi respondents No.2 and 3 neither appeared nor were representad through any counsei. This is ciear from the perusai of order sheet dated 5/07/09 racorded by presiding officer of Lok Adaiat. Even after the matter was referred back to the District Judge, the parties did not express their intention or wiiiingnessfor getting their case again referred to any of the altemative dispute redressai fora. it therefor®cannot be said that iearned Dlstrict Judge committad any jurisdicttonal iliegality or perversity in passing tt'ie order impugned. Neither the irnpugned order can be said to be an order passed under Section88 nor the compromise decree passed by learned District Judge can be temied as settjwnent of dispule decided by ttie Court as provided under Section 89 of the Civil Procedure Code. Reiiance on the division bench judgment of M.P. High Court in the case of Vailabh Das and others Vs. Geeta Bai is misconceiveu in as much as the question invoived in the said cass was that upon settiement in an appeai under a provision of Saction 89 of the Act, whether the appeiiant was enutied for refund of court fees. in ttie result, no case Is rnade out warranting interference by this Court in exereise of iis supewisory jurisdiction under Articie 227 of the Constitution or india. Petition is disrnissed in limine without notioe to other parties. Sd/" Manindra Mohan Shrivastava Judge