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PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: PT. CHANDRA BHUSHAN MISRA

DATE OF JUDGMENT06/11/1979

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SARKARIA, RANJIT SINGH

CITATION:  1980 AIR  591            1980 SCR  (1)1131  1980 SCC  (1) 198

ACT:      Code of  Civil Procedure  1908-Rules framed by the High Court-If have the same force as if originally enacted in the code.

HEADNOTE:      A  second  appeal  under  section  100  Code  of  Civil Procedure 1908  was allowed  by the Allahabad High Court and the matter  was remanded  by the High Court under Order XLI, Rule 23  CPC as  amended by  the High  Court  to  the  Lower Appellant 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 where the remand  was made  under the  amended provisions of Order XLI, Rule 23.      In appeal  it was  contended 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 and not as amended by the High Court. ^      HELD: 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 1908 makes it clear that the rules made by  the High  Court altering the rules contained in the first schedule  as originally  enacted  by  the  legislature shall have  the same  force and  effect as  if they had been contained in  the first  schedule and  therefore necessarily become part  of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 Bhushan  Misra v. Smt. Javatri Devi A.I.R. (56) 1969 Allahabad 142-approved.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2614 of 1969.      From the  Judgment and  Order dated  20-12-1967 of  the Allahabad High Court in Second Appeal No. 3105 of 1963.      G. N. Dixit and O. P. Rana for the Appellant.

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    Ex-parte for the Respondent.      The Judgment of the Court was 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 accordance with law point. The order of remand was made under the provisions of Order  XLI Rule  23 of  the Civil Procedure Code 1908, as amended by the Allahabad High Court. The 1132 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 refund of  the Court  fee paid  in the  Second  Appeal.  The application came  before G. 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  Jagdish 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 Order  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 refunded.  The State of U.P. obtained a certificate under Article 133(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 an 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  is remanded  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 shall      grant to  the appellant  a certificate, authorising him      to receive  back from  the Collector the full amount of      fee paid on the memorandum of appeal". Section 13,  thus speaks of a suit remanded in appeal on any of the  grounds mentioned  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  any preliminary point  so as  to exclude  any evidence  of  fact whish shall  appear to  the appellate 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 terms  as section 351  of the 1859 Code. The Code of 1882 was repealed and replaced  by the Code of Civil Procedure 1908. Order XLI Rule 23  of the  1908 Code also provided for the remand of a case 1133 to the lower court by the appellate court where the suit had been disposed  of upon  a preliminary point and the decision of such  preliminary point  was reversed  in appeal  by  the appellate court.  In exercise  of the  powers vested  in  it under section  122 of  the Code of Civil Procedure 1908, the Allahabad High  Court amended  the provisions  of Order  XLI

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Rule 23  so as  to provide  for the  remand of a case by the appellate 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 appellate court  remanded the case to the lower court in the interest of  justice as  provided by the provisions of Order XLI Rule 23 as amended 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 this Code or to its      corresponding Part, Order, Section or rule". It follows  from Section 158 that reference 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 pursuant 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 section 158  and not  to the  provisions of the rules in the first schedule.  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 straightaway having  regard  to  the  express  reference  to ’Order’ and  ’Rule’ in  section 158  of the  Code  of  Civil Procedure 1908. The second part of the submission requires a slightly closer  examination. Section  2(1) of  the Code  of Civil Procedure 1908 defined "Code" as including 1134 "Rules". Section 2(18) defined "Rules" as meaning "Rules and forms contained  in the first schedule or made under section 122 or  section 125".  Section 121 of the 1908 Code declared that the  rules in  the first schedule shall have effect "as if enacted in the body of the code until annulled or altered in accordance  with the  provisions of  part X  of the Code" (section 121  to 131). Section 122 enabled the High Court to make  rules,   from  time  to  time  "regulating  their  own procedure or  the procedure  of the  Civil code  subject  to their superintendence, and made by such rules, annual, alter or add  to all  or any  of the rules in the first schedule". Section 126 made the rules made by the High Court subject to the previous  approval  of  the  Government  of  the  State. Section 127  provided that  the rules  so made  and approved shall have  the same  force and  effect as  if they had been contained in  the first  schedule. These  provisions make it abundantly clear  that  the  rules  made  by  a  High  Court altering the  rules  contained  in  the  first  schedule  as originally enacted  by the  legislature shall  have 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

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and 127. It does not appear to be necessary to embark upon a detailed examination  of each one of these provisions, since the position  appears to us to be very clear. We, therefore, agree with  the view  expressed by  Pathak and Kirty JJ., in Chandra Bhushan Misra v. Smt. Javatri Devi(1), regarding the effect of  section 158  of the  Code of  Civil Procedure and sections 2(1) to 2(18), 121, 122 and 127.      Jagdish Sahai  J., was  inclined to  the view  that the amendments made  by the  High Court  were  only  fictionally embodied in  the Code  and that the reference to section 351 of the  Code of 1859 in section 13 of the Court Fees Act was to be  construed as  a reference  only to  the provisions of Order XLI  Rule 23,  as originally 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  to 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 had been contained in the first schedule.      We are  of the  view  that  the  question  was  rightly answered by  the Full  Bench of the Allahabad High Court and the appeal is, therefore, dismissed. P.B.R.                                     Appeal dismissed. 1135