Punjab-Haryana High Court
Vipin Luthra & Another vs Vikram Kumar Jain on 23 November, 2010
Author: L. N. Mittal
Bench: L. N. Mittal
CIVIL REVISION NO.474 OF 2010
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CIVIL REVISION NO.474 OF 2010
DATE OF DECISION: NOVEMBER 23, 2010
Vipin Luthra & another
.... Petitioners
VERSUS
Vikram Kumar Jain
.... Respondents
CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.
PRESENT: Mr. Sanjay Vij, Advocate for the petitioners.
Mr. Narender Singh, DAG, Haryana for the state.
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L.N. MITTAL, J. (ORAL)
Plaintiffs who are husband and wife have filed the instant revision petition under Section 227 of the Constitution of India, challenging order dated 26.09.2009 Annexure P-1 passed by learned Additional Civil Judge (Sr. Division), Gurgaon thereby declining prayer of the plaintiffs for refund of the court fee paid in the suit, in view of the compromise effected between the parties, pursuant where to the plaintiffs withdrew the suit. Since there was no dispute between the parties on this aspect and since matter of refund of Court fee was involved, notice of revision petition was issued to State of Haryana.
I have heard learned counsel for the parties and perused the case file.
Learned counsel for the petitioners contended that in view of Section 16 of the Court Fees Act 1870 (in short, the Act), the petitioners are entitled to refund of Court fee, irrespective of whether the parties effected CIVIL REVISION NO.474 OF 2010 -2- settlement within the purview of Section 89 of the Code of Civil Procedure (in short CPC) or effected out of Court settlement without intervention of the Court or any mode referred to in Section 89 CPC. In support of this contention, reliance has been placed on Division Bench Judgment of Karnataka High Court in A. Sreeramaiah Vs. South Indian Bank Ltd., Bangalore & Anr., 2007(2) Civil Court cases 695 and Single Bench Judgment of the said High Court in Kamalamma & Ors. Vs. Honnali Taluk Agricultural Produce Co-operative Marketing Society Ltd., Honnali & Ors., 2010 (1) AIR Karnataka Reporter 279.
On the other hand, learned counsel for the State contended that since compromise in this case was not effected within the purview of Section 89 CPC, the petitioners are not entitled to refund of court fee, because their case is not covered by Section 16 of the Act.
I have carefully considered aforesaid contentions. In order to properly appreciate the same, Section 89 CPC as well as Section 16 of the Act are reproduced hereunder:
"89 Settlement of disputes outside the Court. - (1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and given them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for -
(a) arbitration;
(b) conciliation;
(c) judicial settlement including settlement through Lok Adalat; or
(d) mediation.
(2) Where a dispute has been referred -
CIVIL REVISION NO.474 OF 2010 -3-
(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act;
(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub- section (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;
(c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such instituion or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;
(d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed."
"16. Refund of fee.-
Where the Court refers the parties to the suit to any one of the mode of settlement of dispute referred to in section 89 of the Code of Civil Procedure, 1908 (5 of 1908), the plaintiff shall be entitled to a certificate from the Court authorising him to receive back from the collector, the full amount of the fee paid in respect of such plaint."
Perusal of the aforesaid provisions would reveal that under Section 16 of the Act, Court fee is to be refunded only if the Court refers the parties to any one of the mode of settlement of dispute referred to in Section 89 of CPC and only thereupon, plaintiff becomes entitled to refund of Court fee. In the instant case, admittedly the Court did not refer the parties to any CIVIL REVISION NO.474 OF 2010 -4- mode of settlement mentioned in Section 89 CPC. On the other hand, it is admitted case that the parties effected settlement out of Court without intervention of the Court and without being referred to any mode of settlement detailed in Section 89 CPC. Consequently reading both these provisions together, the instant case is not covered by Section 16 of the Act for refund of the Court fee.
Insofar as judgment of Division Bench of the Karnataka High Court in the case of A. Sreeramaiah Vs. South Indian Bank Ltd., Bangalore & Anr. (supra) is concerned, in that case, the High Court after noticing the rival contentions found that there was an element of possibility of settlement and, therefore, the High Court suggested the terms of settlement to the parties and in the light of said suggestions made by the High Court, the parties settled the matter out of Court and reported the same to the High Court. Thus in that case, the settlement was effected substantially within the purview of Section 89 of CPC and, therefore, Court fee was ordered to be refunded. Facts of that case were thus entirely different and therefore judgment of the said case is not attracted to the instant case.
However, judgment of Single Bench of Karnataka High Court in the case of Kamalamma & Ors. Vs. Honnali Taluk Agricultural Produce Co-operative Marketing Society Ltd., Honnali & Ors., (supra) is prima facie applicable to the facts of the instant case, but with due respect, I find myself unable to subscribe to the view taken in this judgment. When a case is not covered by the provisions of Section 16 of the Act read with Section 89 CPC, the Court cannot carve out a new provision which does not exist in the statute so as to order refund of the Court fee. CIVIL REVISION NO.474 OF 2010 -5- Provisions of fiscal statute have to be construed strictly according to the language of the statute. Judgment in the case of Kamalamma & Ors. Vs. Honnali Taluk Agricultural Produce Co-operative Marketing Society Ltd., Honnali & Ors., (supra) is primarily based on 'what the law should be' and not on 'what the law is'. Said judgment also does not say that Section 16 of the Act covers any such case, although refund of Court fee was ordered in that case with the aid of the said provision.
For the reasons aforesaid, I find no illegality or jurisdictional error in the impugned order of the Trial Court. The revision petition is without any merit and is accordingly dismissed.
(J. N. MITTAL) JUDGE November 23, 2010 'raj'