Holding

Section 13 of the Court Fees Act applies to remands made under Order XI Rule 23 as amended by the High Court, permitting a refund of court fees.

Summary

The State of Uttar Pradesh appealed a decision of the Allahabad High Court which had ordered a refund of court fees under Section 13 of the Court Fees Act, 1870 after a case was remanded to the lower court under Order XI Rule 23 of the Code of Civil Procedure, 1908 as amended by the High Court. The central question was whether Section 13 applied when the remand was made under the High Court's amendment of the rule, and whether the reference in Section 13 to the old Section 351 of the 1859 Code should be read as a reference to the present Order XI Rule 23. The Supreme Court examined the definitions of "code" and "rules" in the CPC 1908 and the effect of Sections 121, 122, 127 and 158, concluding that rules amended by a High Court have the same force as if they were originally enacted. Consequently, the Court held that Section 13 does apply and a refund of court fees can be ordered even for a remand made under the amended rule. The appeal was dismissed, upholding the High Court's order.

Issues considered

Whether Section 13 of the Court Fees Act, 1870 is attracted to a case remanded under Order XI Rule 23 as amended by the High Court.
Whether the reference in Section 13 to Section 351 of the 1859 Code should be construed as a reference to Order XI Rule 23 of the CPC 1908, including High Court amendments.
Whether High Court amendments to procedural rules possess the same legal force as the original legislative rules for the purpose of Section 13.

Legislation cited

Code of Civil Procedure, 1908s. 121, s. 122, s. 127, s. 158, s. 2(1), s. 2(18), s. Order XI Rule 23
Court Fees Act, 1870s. 13

Subjects

Court Fees Actrefund of court feesremandOrder XI Rule 23High Court amendmentdefinition of codeCivil ProcedureSection 13Section 158

Judgment

1131

STATE OF UTTAR PRADESH
v.
PT. CHANDRA BHUSHAN MISRA
November 6, 1979
!\.
[R. S. SARKARIA AND 0. ClllNNAPPA REDDY, JJ.]

Code of Civil Procedure 1908-Rules frar11ed by the High Court-If lun·e
the san1e force as if originally enacted in the c'ode..

A second appeal under section 100 Code of. Civil Procedure 1908 was
allowed by the AJl;ihabad High Court and the matter was remanded by the
High Court under Order XL!, Rule 23 CPC as amended by the High Olurt C
to the Lo\ver Appellate Court for fresh disposal in accordance with law. A
majority of the Division Bench allowed the respondents claim for refund of
the court fees on the view that refund could be ordered under section 13 of
the Court Fees Act even \Vhere the remand was made under the· amended pro--
visions of Order XLT, Rule 23.

Jn appeal it \Vas contended thl1t even if reference to the rules in the first 8
schedule \vas permissible it should onlY be to the rules as enacted by the
legislature and not as amended by the High Court.

HEl.D : A conspectus of the relevant· provisions of the Code of Civil
Procedure 1908 makes it clear that the rules made by the High Court altering -
the ru1es contaioed in the first. schedule as originally emc~ by the legislature
shall have the same force and effect as if they had been contained in tpe :first E
schedule and therefore necessarily become part of the code for all purposes.
That is: the clear effect of the definition of the expression 'code' and 'rules'
and sections 121,,122 and 127 of the Code of Civil Procedure, 1908. [1134 C-E]

Chandra Bli11shan Misra v. Snit. lal'afri Dei·i A.l.R. (56) 196~ Allahabad
142-approved.
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2614 of 1969.

From the Judgment and Order dated 20-12-1967 of the Allahabad
I
High Court in Second Appeal No. 3105 of 1963 .
.G. N. Dixit and 0. P. Rana for the Appellant.
1_,... Ex-parte for the Respondent. c
The Judgment of the Court ;vas delivered by

CHINNAPPA REDDY, J.-A second appeal under section 100 of
the Code 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 aee-0rdance with law p-Oint. The order of remand was B
made under the provisions of Order XU Rule 23 of the Civil Pro-
coo11re Code 1908, as "amended by the Allahabad High Court. The
1132 SUPREME COURT REPORTS, [1980J1 S.C.ll.
' .
successful appellant before the High Court filed an application under
section 13 of the Court Fees Act, 1870 claiming a refund of the
Court Fees Act, 1870 claiming a rduud of the Court fee paid in tile
Second Appeal. The application came before O. 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 J agdish 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
Orrler 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 r¢mded. The State of U.P. ob-
mined a certificate under Article 13 3 ( 1) ( c) of the Constitution and
has preferred this appeal.

Section 13 of the Court Fees Act 1870, in so far as it is material
is as follows :
"If au appeal or a plaint, which has been rejected by
the lower Court on any of the grounds mentioned in the
Code of Civil Procedure as ordered to be received, or if a
suit js iem:riided in appeal on any of the grounds mentioned
in s. 351 of the same code for a second decision of a lower
court, the lower court shat! grant to the appellant a certi-
ficate, authorising him to receive back from the Collector
the full amount 6f fee paid on the memorandum of appeal".

Section 13, thus speaks of a SJ!it remanded in appeal on any of the
grounds .n;ientioned in section 351 of the same Code i.e. the Code of
Civil Procedure which was then in force. Section 351 of the Code
of Civil Procedure 1859 provided for the remand of a case by the
appellate court to the lower court for a decision on the merits on the
case. where "the lower court shall have disposed of the case upon ,
J
any preliminary point so as to exclude any evidence of fact whish ~all ·
appear to the appell~te court essential to the rights of the parties". if
the decision on the preliminary point was reversed by the appellate
court. The Code of 1859 was repealed and replaced by the Code of
1877. Section 562 of the 1877 Code was substantially in the same
.u terms as sectioµ 351 of the 1859 Code. The Code of 18~2 was re-
pealed and replaced by the Code of Civil Procedure 1908. Or<;ler
XLI Rule 23 of the 1908 Code also provided for the remand of a .oase
u. P. STATE v. CHANDRA BHUSIJAN (Chimiappa Reddy,!.) 1133

to 'jhe lower court by the appellate court where the suit had been dis-
poSed of upon a preliminary point and the decision of such preliminary
poiiit was reversed in appeal by the appellate court. In exercise of
the powers vested in it under section 122 of the Code of Civil Proce-
dtire · 1908, the Allahabad High Court amended the provisions of
Order XLI Rule 23 so as to provide for the remand of a case by the
iappellate court to the trial court, not only when the suit had been
decided upon a preliminary point and the decision was reversed in
appeal, but also whenever the appellate court considered it necessary
in the interest of justice. The question for consideration in this appeal
is whether the power to grant refund of court fees under section 13
of the Court· Fees Act 1870 was attracted to a case where the appel-
late court remanded the case to the lower court in the interest of
justice as·provided by the provisions of Order XLI Rule 23 as amend-
ed by the High Court of Allahabad.

In order to answer the question a reference is necessary to section
158 of the Code of Civil Procedure 1908. It was as follows :
"158. 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 E
this Code or to its corresponding Part, Order,· Section or
rule".

It follows from Section 158 that refei:ence in Section 13 of the Court
Fees Act 1879 to Section 351 of the Code of Civil Procedure 1859
has to be read as reference to Order XLI Rule 23 of the Code of Civil
Procedure 1908. The submission of the learned counsel was that the
reference to any provision of"the Code of Civil Procedure 1908 nur-
· suant to section 158 of the Code must be to provision occurring in the
body of the main code consisting of the provisions from section 1 to
.-~ion 158 and not to the provisions of the rules in the first schedule.
G.
,.,/' He further submitted 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. The first
part of the submission of the learned counsel has to be rejected straight-
hway having regard to the express reference to 'Ord.er' and 'Rule'
in section 158 of the Code of Civil Procedure 1908. The second part B
of the submission requires a slightly closer examination.,Section 2(1)
of the Code of Civil Procedure 1908 defined "Code" as including
. 1134 SUPMME COUllT ~POl\TS (1980] 1 S.C.I\.

"Rules". Section 2(18). defined "Rule&" as rneaning "Rules 3lld
fomis cootained in the first schedule or made under seqipn
122 -0r section 125'\ Section 121 of the 190.8 Code .declared Ulat
the rules in the first schedule shall havti effect "as if en;ided
· in the ·body of the code until annulled or altered in accorda:u:e
with. the provisions of part X of the Code" (section 121 to 131).
Section 122 enabled the High Conrtto make rules, from time to time
"regulating their own procedure or the procedur~ of the Civil ~
s.ubject to their superintendence, and lllllde by such rules, amiual,
alter or add to all or any of the niles in the first schedule". ~
126 made the rules made by the High Court subject to the previous
approval of the Government of the State. · Section 127 provided rthllt
the rules so made and 'approved shall have the same force and .elfect
as if they had been contained in the first schedule. The.<ie pro~
make it abun<lantly clear that the rules made by a High Court all2fing
the rules contained in the first schedule as originally enacted by the
legislature shall h'ave 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 "Code" and "Rules" and sections 121, 122 and 127.
It does not atlpear to be necessary to embark upon a detailed OX'llmi-
nation of each one of these provisions, since the position appea<s to
us to be very clear. We, therefore, agree with the view expre6Scd by
Pathak and Kirty JJ., in Chandra Bhushan Misra v. Smt. lavatri
Devi('), regarding the effect of section 158 of the Code of Civil Pro-
cedure and sections 2(1) to 2(18), 121, 122 and 127.
fagdish Sahai J., was inclined to the view. that the amendments
made by the High Court .were only fictionally embodied in the Gode
and th'at the referenc~ to section 351 of the Code of 1859 in section
13 of the Court Fees Act was to be construed as ai reference only t'
the provisions of Order XLI Rule 23,, as . opginally 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 t(} 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 fu><!-.. "·
been contained in the first schedule.
We are of the view that the question was rightly answered by the
j
Full Bench of the Allahabad High Court and the appeal is, therefore,

... dismissed .

·Appeal dismissed.

(!) A.T.R. (56) 1969 Allahabad 142.