Vipin Luthra and Another vs Vikram Kumar Jain

L.N. Mittal, J.—Plaintiffs who are husband and wife have filed the instant revision petition u/s 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-settlement within the purview of Section 89 of the CPC (in short Code of Civil Procedure) or effected cut of Court settlement without intervention of the Court or any mode referred to in Section 89 Code of Civil Procedure. In support of this contention, reliance has been placed on Division Pench judgment of Karnataka High Court in A. Sreeramaiah v. South Indian Bank Ltd., Bangalore and Anr. 2007(2) CCC 695 and Single Bench judgment of the said High Court in Kamalamma and Ors. v. Honnali Taluk Agricultural Produce Co-operative Marketing Society Ltd, Honnali and Ors. AIR 2010 Karn Rep. 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 Code of Civil Procedure, 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 4. 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 Adaiat; or

(d) mediation.

(2) Where a dispute has been referred -

(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 Adaiat, the Court shall refer the same to the Lok Adaiat in accordance with the provisions of sub-section (1) of Section 20 of the Legal Services Authoriry Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adaiat;

(c) for judicial settlement, the Court shall refer the Sume to a suitable institution or person and such institution or person shall be deemed to be a Lok Adaiat 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 Adaiat 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.

Refund of fee.-

Where the Court refers the parties to the suid 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 u/s 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-mode of settlement mentioned in Section 89 Code of Civil Procedure. 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 Code of Civil Procedure. 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 Kamataka High Court in the case of A. Sreeramaiah v. South Indian Bank Ltd., Bangalore and 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 and Ors. v. Honnali Taluk Agricultural Produce Co-operative Marketing Society Ltd., Honnali and 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 Code of Civil Procedure, the Court cannot carve out a new provision which does not exist in the statute so as to order refund of the Court fee. Provisions of fiscal statute have to be construed strictly according to the language of the statute. judgment in the case of Kamalamma and Ors. v. Honnali Taluk Agricultural Produce Co-operative Marketing Society Ltd, Honnali and 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.