Karnataka High Court
Sagar Enterprises vs The Registrar, City Civil Court on 13 August, 2004
Equivalent citations: AIR2004KANT492, ILR2004KAR4376, AIR 2004 KARNATAKA 492, 2004 AIR - KANT. H. C. R. 3029, (2004) ILR (KANT) (4) 4376, (2004) 4 ICC 779, (2004) 6 KANT LJ 476
Author: K. Bhakthavatsala
Bench: K. Bhakthavatsala
ORDER XVIII RULE 4 - REFUND OF COURT FEE UNDER - HELD, For the purpose of refund of Court fee under Section 66 of the Act, receiving affidavit of the plaintiff in lieu of oral evidence cannot be treated as "Evidence Recorded". The Court below erred in refusing to order for refund of Court fee as per Section 66 of the Act. (B) CIVIL PROCEDURE CODE, 1908 - ORDER 18 RULE 4 - Whether receipt of plaintiff's affidavit in lieu of oral evidence as per Rule 4 to Order 18 CPC is sufficient to hold that evidence is recorded within the scope of Section 66 of the Act - HELD, the amendment by way of adding Rule 4 to Order 18 of the Code of Civil Procedure is with an intention to reduce prolonged litigation - Receiving affidavit of P.W.1 in lieu of oral evidence cannot be treated as "Evidence recorded". Held: Admittedly, the Court has not spent any time in recording evidence in suit. Further, the defendant has cross examined PW-1. On the other hand, the plaintiff and the defendant, by mutual consent, have got their dispute settled out of Court. In this regard, it will be useful to refer to the decision reported in ILR 1985 KAR 2385 (P.B. Rai v. Reza Mali). In the above-said case, this Court has held that the benefit of refund of half the amount of Court fee paid on the claim in a Suit, made available to a Suitor under Section 66 of the Act was intended to achieve dual beneficial purposes, viz., (i) of encouraging parties to a suit, to settle by agreement, the claim in such suit out of Court itself that too, in the very initial stages of such suit, so that they may be saved of their time and expenses of a prolonged litigation, and (ii) of giving relief to the Court concerned which is invariably over-burdened. Writ Petition allowed. ORDER K. Bhakthavatsala, J.
1. This is a Writ Petition filed under Articles 226 & 227 of the Constitution of India by the Petitioner/Plaintiff challenging the order dated 6.11.2003 passed in OS. No.6185/2002 on the file of City Civil Judge, Bangalore (Annexurc-B), in so far as refusing to refund half Court fee as per Section 66 of the Karnataka Court Fees and Suits Valuation Act, 1958 (in short, 'the Act').
2. Sri Puttasiddaiah, learned Government Pleader is directed to take notice for the Respondent.
3. With the consent of the learned Counsels for the parties, heard arguments for final disposal.
4. The brief facts of the case leading to the filing of the Writ Petition may be stated as under;
The Petitioner/Plaintiff filed a Suit in O.S. No.6185/2002 on the file of City Civil Judge, Bangalore, for ejectment of the tenant/defendant from the suit schedule premises and consequential reliefs. The Defendant in the Suit entered appearance and filed written statement. Thereafter, the Court below framed issues. On 19.6.2003, in lieu of oral evidence, the Plaintiff filed his affidavit. The case was adjourned for cross-examination of P.W-1 (viz., the Plaintiff). In the meantime, the parties to the Suit got the dispute settled out of Court. Therefore, on 6.11.2003, a joint memo was filed by the Plaintiff and the Defendant before the Court below stating that the parties have settled the dispute out of Court and to refund half of Court fee as per Section 66 of the Act. The Court below dismissed the Suit as settled out of Court, but refused to refund the Court fee on the ground that evidence of P.W- 1 was received by way of an affidavit. This is impugned in this Writ Petition.
5. During the course of argument, the learned Counsel for the petitioner/Plaintiff submitted that Section 66 of the Act has been in force with effect from 15.8.1960; whereas the new procedure of recording evidence by way of affidavit (vide Order XVIII Rule 4 of CPC) was introduced by way of amendment of Act 46 of 1999 and Act 22 of 2002, which came into force with effect from 1.7.2002, but so far Section 66 of the Act has not been amended.
6. The learned Government Pleader submitted that since the affidavit of the Plaintiff has been received in lieu of oral evidence of the Plaintiff, evidence on merits of claim is deemed to have been recorded, and therefore the Plaintiff was not entitled for refund of Court fee as per Section 66 of the Act,
7. Section 66 of the Act reads as under'.
"66. Refund on settlement before hearing.- Whenever by agreement of parties. -
(a) any suit is dismissed as settled out of Court before any evidence has been recorded on the merits of claim; or
(b) any suit is compromised ending in a compromise decree before any evidence has been recorded on the merits of the claim; or
(c) any appeal is disposed of before the commencement of hearing of such appeal:
half the amount of all fees paid in respect of the claim or claims in the suit or appeal shall be ordered by the Court to be refunded to the parties by whom the same have been respectively paid.
Explanation.- The expression 'merits of the claim' shall have the meaning assigned to it in Section 11."
8. Order XVIII Rule 4 of the Code of Civil Procedure reads as under: -
"Recording of evidence.- (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:
Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.
(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it:
Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit:
(3) The Court or the Commissioner; as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit.
(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination:
Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments.
(5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule.
(7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner.
(8) The provisions of Rules 16, 16A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule.
9. The short question that arises for consideration in this Writ Petition is:
Whether receipt of Plaintiff's affidavit in lieu of oral evidence as per Rule 4 to Order 18 of C P C is sufficient to hold that evidence is recorded within the scope of Section 66 of the Act?
10. My answer to the above point is in the negative for the following reasons:
Admittedly, the Court has not spent any time in recording evidence in the suit. Further, the Defendant has not cross examined P.W-1. On the other hand, the Plaintiff and the Defendant, by mutual consent, have got their dispute settled out of Court. In this regard, it will be useful to refer to the decision reported in (P.B. RAI v. REZA JALALI, ). In the above-said case, this Court has held that the benefit of refund of half the amount of Court fee paid on the claim in a Suit, made available to a Suitor under Section 66 of the Act was intended to achieve dual beneficial purposes, viz.,
(i) of encouraging parties to a suit, to settle by agreement, the claim in such suit out of Court itself that too, in the very initial stages of such suit, so that they may be saved of their time and expenses of a prolonged litigation, and
(ii) of giving relief to the Court concerned which is invariably over-burdened.
11. It is pertinent to mention that the amendment by way of adding Rule 4 to Order 18 of the Code of Civil Procedure is with an intention to reduce prolonged litigation. Therefore, for the purpose of refund of Court fee under Section 66 of the Act, receiving affidavit of the Plaintiff (P.W- 1) in lieu of oral evidence cannot be treated as "evidence recorded". The Court below erred in refusing to order for refund of Court fee as per Section 66 of the Act.
12. Hence, the Writ Petition is allowed and the impugned order dated 6.11.2003 passed in 0.5. No.6185/2002 on the file of City Civil Judge, Bangalore (Annexure-B) in so far as refusing to refund Court fee as per Section 66 of the Act, is quashed and the Court below is directed to refund Court fee to the Plaintiff as per Section 66 of the Act. No costs.