Parmatma Dev vs Chanan Dev

Teja Singh, C.J.—This second appeal has boon preferred under the following circumstances:

The Appellant brought a suit for possession of certain agricultural land and a house in the Court of the Natb Nazim Dewani Barnala. While the proceedings in the case were still pending in the trial Court the Defendant applied under Order 23, Rule 13 - that since the parties had compromised the case and the Plaintiff had agreed to give up his claim, the suit be dismissed in the terms of the compromise, The trial Court being of the view that the compromise deed was unregistered and it'' could not be admitted in evidence, decided the lease on merits and passed a decree in Plaintiff''s favour.-'' The Defendants'' appeal to the District judge was also dismissed. But on further appeal, the High Court set aside the judgments and decrees of the Courts below and holding that the compromise deed was not compulsorily register able remanded the case for decision of the Defendants'' application;

After the remand the trial Sub-Judge recorded the parties'' evidence and on finding that the case had been compromised and the Plaintiff had agreed to give up his claim dismissed the suit. It may here be mentioned that the trial Sub-Judge ignored the mandatory provisions of Order 23, Rule 3 inasmuch as he did not make an order for reign the compromise as he was required to do merely gave effect to the compromise by dismissing the Plaintiff''s suit. A decree-sheet was also prepared. Aggrieved by the decision of the trial Court the Plaintiff preferred an appeal to the District Judge. This appeal was described as one under Order 43, Rule 1 and court fee of Re. 1/-which is chargeable for miscellaneous appeals, was paid. It appears that no objection was taken to the maintainability of the appeal in the District Judge''s Court nor was it contended by the Defendant-Respondent that the appeal was one from the decree and hence ad valorem court-fee should be paid. The District Judge after taking into consideration the evidence upheld- the finding of the trial Court that the case had been validly compromised by the parties and the Plaintiff had given up his claim regarding the suit property. He also held that the issue regarding the factum and validity of the compromise had been rightly decided by the trial Court and the suit had been properly dismissed.

In the result he dismissed the Plaintiff''s appeal leaving the parties to bear their own costs. On this the Plaintiff preferred the present appeal in the High Court and though he paid a court-fee of Rs. 4/- only, which is the fee payable for miscellaneous appeals, he described it as an appeal u/s 100, CPC The office also treated it as a miscellaneous appeal and notwithstanding the fact that the jurisdiction value of the suit property was given in the memorandum of appeal as Rs. 1582/-. It was placed before a learned Judge of this Court. Mr. Amar Nath counsel for the Respondent raised a preliminary objection that proper court-fee in appeal had not been paid. His argument was that the appeal was from a decree and ad valorem court-fee should have been paid on the value of the subject-matter of appeal. He further contended that the nature of the appeal in the District Judge''s Court was the same and in that Court too ad valorem court-fee should have been paid.

The learned Judge accepted this objection and by his order dated 19-10-1951 called upon the Appellant to make up the deficiency of court-fee of both the Courts i.e. the Court of the District Judge and this Court and directed that after this had been done the appeal be registered as an appeal from the original decree. The Appellant made up the deficiency of court-fee as ordered'' and the appeal then came up before this bench, because under the law an appeal from a decree arising in a land-suit the jurisdiction value of which was above Rs. 1000/- can only be heard by a Division Bench. As it appeared to me that a difficult situation had been created because of the course adopted by the Plaintiff-Appellant, and without deciding whether or not the appeal was competent and whether it could be heard by a single bench or a Division Bench, in exercise of the powers given to me u/s 59 of the Judicature Ordinance (No. 10 of 2005) I ordered that the appeal be heard by the first bench.

The first question that we have to determine is what was the nature of the appeal in the District Judge''s Court. As I have already observed the Appellant not Only described it as appeal under Order 43, Rule 1 but even paid court-fee required for a miscellaneous, appeal. The Appellant''s counsel argued that since the trial Sub-Judge had not made any formal order under Order 23, Rule 3 recording the compromise alleged to have been arrived at| between the parties and had passed a decree dismissing the Plaintiff''s suit he had a right of preferring a regular appeal from the decree. This contention of his is supported by a bench decision of the Calcutta High Court, - ''Paban Sardar v. Bhupinder Nath; AIR 1917 Cal 607 (A), and I am inclined to think that it is correct. The difficulty, however, is that instead of adopting that course and instead of preferring an appeal against the decree he preferred an appeal under Order 43,''Rule 1, Clause (m) of which gave him the right to appeal from an order refusing to record the compromise.

It is true that the Sub-Judge had not made any formal order recording the compromise but as was held by Anr. bench of this Court to which I was a party - Zorawar Singh v. Sher Singh'' AIR 1950 Pepsu 26 (B), this did not deprive him of the right of appeal. In that case also the parties had come to terms and the compromise had been properly proved but the Court instead of passing a formal order recording the cowponies and then passing a decree on the basis) of the compromise made a consolidated order that A decree may be passed in the terms of the com- promise,. The party against whom the decree was passed preferred an appeal and it was held by the bench that the appeal was competent. The following observations made in that case can be quoted with advantage:

It is correct that the words of Rule 3, Order 23, contemplate that when a Court is satisfied that a suit has been adjusted wholly or in part by any lawful agreement or compromise the court must, first - pass an order recording the agree- ment, compromise or satisfaction, as the case may be, and then there should be a separate order to the effect that a decree be passed in accordance with the agreement, etc., so far as it relates to the suit; but the mere fact that this mandatory provision of law is hot followed in a particular case and the Court instead of passing two separate orders makes a consolidated order, cannot deprive the aggrieved party from " a right of appeal which the law gives him.

I am, therefore, of the opinion that the appeal in the District Judge''s Court was in fact an appeal under Order 43, Rule 1(m) and not an appeal from a decree. I am further of the opinion that the court-fee of Re. 1/- paid by the Appellant in the District Judge''s Court was the proper fee and the .Appellant could not be called upon to pay any additional court-fee.

The next question to be determined is whether the Appellant could prefer a second appeal to'' this Court against the order of the District Judge by which his appeal under Order 43, Rule 1 was dismissed and whether this appeal is an appeal from a decree. It is clear that Order 43, Rule 1(m) has no applicability for the simple reason that the District Judge''s order is not an order recording or reusing to record the compromise. No second appeal from an order refusing to interfere in an appeal under Order 43, Rule 1(m) is provided. Our attention has been drawn to the fact that a regular decree was drawn up by the District Judge, but this was obviously an erroneous procedure because the order by which the District Judge dismissed the appeal did not amount to a decree and my view is that when a Court draws up a decree which is not warranted,by law this does not give the aggrieved party a right of preferring a-regular appeal when no such appeal lies otherwise. Nor do I think the present appeal could be Warded as an appeal from the decree. The counsel who put in the appeal treated it as a miscellaneous appeal and it was for this reason that he paid court-fee of Rs. 4/-. Even a miscellaneous second appeal was not competent and! the only remedy open to the Appellant against the order of the District judge dismissing his ''appeal in that Court was by way of a revision petition.

The contention that even if the finding of the Courts below be set aside the decrees passed by them would still stand unless they were also quashed and the only course to have them quashed was to file regular appeals there from, ignores the fact that the decrees were based upon the com-promise, and if it was once held that no com-promise had taken place or that it was not binding upon the Appellant the very -basis of the decrees would be taken away and they would automatically cease to exist. Moreover so far as the District Judge''s Court is concerned we have a clear authority of this Court referred to above that an appeal under Order 43, Rule 1(m) is competent even though the decree is passed on the basis of the compromise without a formal order recording the compromise. As regards the decree-sheet drawn up in the District Judge''s Court it did not require to be set aside by any kind of appeal because it had no existence in law. Accordingly I hold that neither the Appellant had any right to prefer the second appeal against the order of the District Judge nor the appeal actually preferred by him can be treated as an appeal from a decree. In the view that I take I further hold that the court-fee of Rs. 4/- paid on the appeal was the proper court-fee.

As a last resort the Appellant''s counsel prayed that his appeal be treated as a revision petition. In view of the time that the proceedings in the High Court have taken, and also because of the . order made by the learned single Judge calling upon the Appellant to make up what he regarded as deficiency in court-fee, I am inclined to accept the prayer. But this cannot do any substantial good to the Appellant, because the scope of a revision petition is limited and the counsel has not been able to convince us that there exists any good reason for us to interfere as a Court of revision. The entire evidence that the parties adduced in respect of the compromise deed has been discussed by the Courts below and they have held that the compromise deed was duly executed and the Plaintiff''s plea that he was made to affix the thumb mark to a blank paper was without any substance. The appearance of the deed itself is no doubt somewhat suspicious and the fact that it was not executed on the same day on which the stamp paper, upon which it was'' written was purchased introduces an element of uncertainty; but since all these matters have been considered by the Courts below and they have come to the definite conclusion that the document was executed by the Plaintiff I do not think it is within our power to set aside those findings in revision. In the result I would dismiss the appeal even though it be treated as a revision petition, but in view of the erroneous objection raised by the Respondent''s counsel regarding the court-fee, because of which the case had to be adjourned and kept pending for such a long time, I would leave the parties to bear their own costs throughout.

It was urged by the Appellant''s counsel that the additional court-fee that his client was made to pay both as regards this appeal and the appeal that he lodged in the Court of the District Judge should be refunded to him. As I have held that the proper court-fee had been paid for both the appeals and no additional court-fee could be called for I do not see how we can reject this prayer. It is true that the case in this respect is not governed by any specific provision of the Court-fees Act, but it was held by the Bench of the Madras High Court in - "Thaminayya Naidu v. Venkataramanamma AIR 1932 Mad 438 (C) that Section 151, CPC enables a High Court to order refund of the court-fees paid in excess when obvious injustice would be done if it were not repaid, and further that it would be ''unreasonable and unjust for the High Court not to assist a party to recover excess court-fee erroneously paid under its own order or under the orders of Courts subordinate to it. Following this authority I would order that the additional court fee that the Appellant was called upon to pay in pursuance of the order of the learned single Judge dated 19-10-1951 and which he did pay, should be refunded to him.

Chopra, J.

I agree