Shanti Lal v. Agha Dost Muhammad Khan

Banerji, King and Niamat-ullah, JJ.:— The question of law which has been referred to this Full Bench may be stated as follows:—When a court of second appeal has remanded a case to the lower appellate court under order XLI, rule 23 of the Civil Procedure. Code, is the appellant entitled under section 13 of the Court Fees Act to a refund of the court fee paid on the memorandum of appeal?

For the purpose of this reference we assume that the remand does not merely purport to have been made under order XLI, rule 23, and that the remand was in fact made “on any of the grounds mentioned” in order XLI, rule 23. On this assumption the appellant to clearly entitled to a refund if it is held that the “suit” has been remanded to the lower appellate court. The word “suit” has not been defined for the purposes of the Court Fees Act, nor is there any definition of that word in he Code of Civil Procedure. The arguments of the stamp reporter implies that a “suit” terminates when the trial court passes a decree, and that further proceedings by way of appeal are not proceedings in the suit. On this view it is the appeal, and not the suit, which has been remanded to the lower appellate court and consequently section 13 does not in terms apply. We think that this view gives too narrow a meaning to the word “suit” and that proceedings in appeal may be regarded as proceedings in the suit. When an appeal is admitted against the trial court's decree the suit becomes sub judice again. The appellate court's decree does no doubt decide the appeal, but it also decides the suit. The appellate court frequently, in so, many words, “decrees the suit” or “dismisses the suit” as the case may be. On this view the proceedings in first appeal and in second appeal are merely successive stages “of the suit, and the suit does not terminate so long as any appeal is pending.

There are indications in the Court Fees Act that the word “suit” has been given a wide meaning and that an appeal is treated as a proceeding in a suit. In schedule II, articles 4, 5 and 17, we find the expression “memorandum of appeal in a suit”. The appeal may of course be a second appeal. So even a second appeal is spoken of as an “appeal in a suit”, implying that it is a proceeding in a suit. Section 12(ii) speaks of a suit in coming before a court of appeal. This also indicates that in the contemplation of the legislature the appellate court deals with the suit, and that the appeal is only a proceeding in, or stage of, a suit in Dyal Singh v. Ram Rakha it was expressly held by a Full Bench of the Punjab Chief Court that in sections 10(ii) and 12(ii) of the Court Fees Act the word “suit” includes an appeal, so that the appeal in a defaulting appellant must be dismissed on his failure to make up the deficiency in court fees when called on to the so. Our own Court has, by implication, taken a similar view in Narain Singh v. Chaturbhuj Singh , in which it was held that “If it were the appellant who was in fault and failed to pay the full court Fee due from him in the lower court, this Court certainly could stay the hearing of his appeal and, if the deficient fees were, not paid, could dismiss his appeal, and no doubt would do so.” This decision was approved and followed in the Full Bench ruling, Mohan Lal v. Nand Kishore (2). There is, therefore, clear authority for the view that in the Court Fees Act the word “suit” can be given a wide meaning so as to include proceedings in appeal.

There is nothing in the subject or context of section 13 showing that the word “suit” is to be understood in any specially restricted sense so as not to include a suit at the stage of first appeal. On the contrary it would be anomalous and unreasonable if the court fee were refundable in the case of a remand to the trial court, and not refundable in the case of a remand to the lower appellate court,—assuming of course that the requirements of order XLI, rule 23, are strictly fulfilled in each case.

We hold that the “suit” has been remanded, within the meaning of section 13 of the Court Fees Act, and the court fee is refundable if the remand has been made upon the grounds mentioned in order XLI, rule 23. Let this answer be laid before the Hon'ble Judges who made the reference.