Case: State of Uttar Pradesh Vs. Pt. Chandra Bhushan Misra

A second appeal under section 100 of theCode 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 accordance with law point. The order of remand was made under the provisions of Order XLI Rule 23 of the Civil Procedure Code 1908, as amended by the Allahabad High Court. The successful appellant before t he High Court filed an application under section 13 ofthe Court Fees Act, 1870 claiming a refund of the CourtFees Act, 1870 claiming a refund of the Courtfee paid in the Second Appeal. The application came before G. 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 Jagdish 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 Order 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 refunded. The St ate of U.P. obtained a certificate under Article 133(1)(c) of the Constitution and has preferred this appeal.

Reasoning: These provisions make it abundantly clear that the rules made by a High Court altering the rules contained in the first schedule as originally enacted by the legislature shall have the same force and effect as if they had been contained in the first schedule and therefore, necessarily became part of the Code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 "Co de" and "Rules" and sections 121, 122 and 127. It does not appear to be necessary to embark upon a detailed examination of each one of these provisions, since the position appears to us to be very clear. We, therefore, agree with the view expressed by Pathak and Kirty JJ., in Chandra Bhushan Misra v. Smt. Javatri Devi(1), regarding the effect of section 158 of theCode of Civil Procedure and sections 2(1) to 2(18), 121, 122 and 127.Jagdish Sahai J., was inclined to the view that the amendments made by the High Court were only fictionally embodied in the Code and that the reference to section 351 of the Code of 1859 in section 13 of the Court Fees Act was to be construed as a reference only to the provisions of Order XLI Rule 2 3, as originally 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 to 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 had been contained in the first schedule.