# Bulandshahr Khurja Development Authority v. Smt. Savita &Anr

- **Citation:** (2019) 1 ILRA 150
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-21
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bulandshahr-khurja-development-authority-v-smt-savita-anr-44429
- **Pages:** 5

## Headnote

Section 13 of the Court Fees Act, 1830;
Section 158 C.P.C. - First appeal allowed
remanding matter to court below for
decision fresh - Grounds mentioned in S.
351 C.P.C. explained - Principle laid
down by Apex Court in Pt. Chandra
Bhushan Mishra's case and Surendra
Singh's case relied upon - Applicable in
Land Acquisition Appeal too - Court fees
paid is liable to be refunded - Court
below directed to grant certificate u/s 13
of C.F. Act. (E-1)

## Text

150 INDIAN LAW REPORTS ALLAHABAD SERIES
inclined to stay the proceedings till
disposal of the other case pending before
the High Court. It may also be taken note
of that the evidence which is produced in
the cross-cases cannot be made of any use
in other cross-case and both the cases
have to be decided on the basis of the
evidence produced in each of cases
separately remaining uninfluenced by the
evidence which is produced in the other
alleged cross case. The only rationale to
justify the decision in the two cases
simultaneously is to avoid the possibility
of mutually conflicting decisions which
may sometimes happen if the court is not
aware about the verdict given in the other
case. But in the peculiar facts and
circumstances of this particular case the
precautionary principle cannot override
the other significant considerations of
pragmatic judicial prudence and the
process of law cannot be stalled simply on
the basis of the existence of some alleged
cross case and that too where proceedings
have been stayed by the High Court. The
matter has already reached at the final
stage and must be allowed to arrive at its
logical
end
otherwise
instead
of
promoting, it shall frustrate the ends of
justice.

5. The application lacks merit and
stands dismissed.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.05.2019

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

FIRST APPEAL NO.138 of 1998

Bulandshahr Khurja Development
Authority ...Appellant
Versus
Smt. Savita &Anr. ...Respondents

Counsel for the Appellant:
Sri A.K. Srivastava, Sri B.Dayal, Sri Ajay
Kumar Misra.

Counsel for the Respondents:
-

A. First Appeal - Refund of court fees -
Section 13 of the Court Fees Act, 1830;
Section 158 C.P.C. - First appeal allowed
remanding matter to court below for
decision fresh - Grounds mentioned in S.
351 C.P.C. explained - Principle laid
down by Apex Court in Pt. Chandra
Bhushan Mishra's case and Surendra
Singh's case relied upon - Applicable in
Land Acquisition Appeal too - Court fees
paid is liable to be refunded - Court
below directed to grant certificate u/s 13
of C.F. Act. (E-1)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1- Heard Sri B. Dayal, learned
counsel for the appellant. No one appears
on behalf of the respondent.

2- The present first appeal arises
from the impugned common judgment
passed in LAR No.164 of 1992.

3- By the impugned common
judgement
passed
in
LAR
Nos.
165,167,163, 164 and 166 all of 1992, the
reference court determined compensation
@ Rs. 400/- per Sq. yard along with other
statutory benefits and interest.

4- Learned counsel for the appellant
submits
that
by
Notification
dated
20.12.1988, under Section 4(1) of the
Land Acquisition Act, 1894 (hereinafter
referred to as the 'Act'), land measuring
1 All. Bulandshahr Khurja Development Authority Vs. Smt. Savita & Anr.
151
about 98 Bighas situate in village
Akbarpur,
Pargana
Baran,
district
Bulandhshr, was acquired for establishing
residential colony. He further submits that
First Appeal No. 192 of 1998 arising from
judgment in LAR No.162, First Appeal
No.168 of 1998 arising from judgment in
LAR No.167, First Appeal No.139 of
1998 arising from judgment in LAR
No.166 were allowed on 20.4.2004 and
First Appeal No.121 of 1995 arising from
judgment in LAR No.163 of 1992 was
allowed on 25.5.2018 by this Court and
the matters were remanded to the court
below for decision afresh and the
impugned common judgment has been set
aside.

Refund of Court Fees:

5- Learned counsel for the claimantappellant now submits that in view of the
provisions of Section 13 of the Court Fee
Act, 1870 (hereinafter referred to as the
'Act') the Court fee paid on memorandum
of above noted appeal in this Court, is
liable to be refunded.

6- I have carefully considered the
submissions of the learned counsel for the
appellant.

7- Section 13 of the Court Fees Act,
1870 provides as under:

"13. Refund of fee paid on
memorandum of appeal.-If an appeal or
plaint, which has been rejected by the
lower Court on any of the grounds
mentioned in the 1 Code of Civil
Procedure, is ordered to be received, or if
a suit is remanded in appeal, on any of the
grounds mentioned in section 351 of the
same Code, for a second decision by the
lower Court, the Appellate Court shall
grant to the appellant a certificate,
authorizing him to receive back from the
Collector the full amount of fee paid on
the memorandum of appeal: Provided
that, if in, the case of a remand in appeal,
the order of remand shall not cover the
whole of the subject-matter of the suit, the
certificate so granted shall not authorize
the appellant to receive back more than so
much fee as would have been originally
payable on the part or parts of such
subject-matter in respect whereof the suit
has been remanded".

8- The aforesaid provision was
explained by Full Bench of this Court in
Chandra Bhushan Misra v. Smt.
Jayatri Devi, AIR 1969 Allahabad 142
and the order for refund of the Court fees
was passed. The said judgment relates to
Court fees paid on memorandum of
second appeal. The aforesaid Full Bench
judgment was challenged by the State of
U.P. before Hon'ble Supreme Court in
State of U.P. v. Pt. Chandra Bhushan
Misra, (1980) 1 SCC 198 (Paragraph
Nos. 2,3, 4 and 5)and Hon'ble Supreme
Court held as under:

2."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".
152 INDIAN LAW REPORTS ALLAHABAD SERIES

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 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 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.

3. 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
1 All. Bulandshahr Khurja Development Authority Vs. Smt. Savita & Anr.
153
Civil Procedure 1908 defined "Code" as
including "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 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, regarding the effect of section
158 of the Code of Civil Procedure and
sections 2(1) to 2(18), 121, 122 and 127.

4. 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.

5. 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".

9- Recently, while dealing with the
land acquisition matters in Surendra
Singh v. State of Haryana and others,
(2018) 3 SCC 278 (Paragraph Nos. 38,39
and 40) Hon'ble Supreme Court held a
under:

"38. Since we have remanded
these cases to the Reference Court for
fresh adjudication on merits in accordance
with law, the appellants (land owners) are
entitled to get back the amount of court
fee paid by each appellant (land owner)
on his appeal memo before the High
Court as also before this Court as
provided under Section 13 of the Court
Fees Act.

39. The Registry is accordingly
directed to issue necessary certificate of
refund of Court Fee amount, if paid by
any of the landowner on his memo of
appeal in the High Court and in this Court
under the Court Fees Act to enable the
landowners to claim the refund of the
court fee amount from the State Treasury
concerned.
154 INDIAN LAW REPORTS ALLAHABAD SERIES

40. If for any reason, it is not
possible for the Registry of this Court to
issue refund certificate of the court fee
amount paid by the appellant landowners
on their memo of appeals filed in the High
Court on their respective appeal memo
then the requisite certificate shall be
issued by the High Court concerned as per
the Rules in favour of each appellant
landowner under the Court Fees Act".

10- The words "on any of the
grounds mentioned in section 351 of the
same Code" as used in Section 13 of the
Act, 1870 has been held by Hon'ble
Supreme Court in the case of Pt.
Chandra Bhushan Misra (supra) to be
referable to Section 351 of the Code of
Civil Procedure 1859. Refund of court
fees under Section 13 of the Court Fees
Act, has been exhaustively explained by
Hon'ble Supreme Court in the aforesaid
case of Chandra Bhushan Misra.

11- So far as the question of refund
of court fees under section 13 of the Court
Fees Act,1870 in land acquisition appeal
is concerned, the Hon'ble Supreme Court,
has provided in the case of Surendra
Singh (supra) for refund of court-fees,
while remanding the matter to the
reference court for fresh adjudication on
merits in accordance with law.

12- Thus, in view of the law settled
by Hon'ble Supreme Court in the case of
Pt. Chandra Bhushan Misra (supra)
and Surendra Singh (supra), I find no
difficulty to accept the submission of the
learned counsel for the appellant for
refund of Court-fees. Therefore, it is
provided that the appellant is entitled for
refund of court fees paid by him on his
memorandum of the present first appeal in
terms of the provisions of Section 13 of
the Court-Fees Act. Necessary certificate
under Section 13 of the Act, shall be
granted to the appellant.

13- In view of the aforesaid, this
first appeal is also allowed. The
impugned judgment of the reference
court in LAR No.164 of 1992 is set
aside. LAR No.164 of 1992 is restored
to its original number. The matter is
remanded to the reference court for
decision afresh in accordance with law.
For refund of court fees paid on the
memorandum of appeal, a certificate
shall be granted to the appellant under
Section 13 of the Court Fees Act. The
reference
court
shall
decide
LAR
No.164 of 1992 along with above
referred all land acquisition references,
if still pending, within six months from
the date of presentation of a certified
copy of this order, without granting any
unnecessary adjournment to either of
the parties.

14- Lower court record shall be
returned by the office to the court below
positively within two weeks.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL J.
THE HON'BLE RAJENDRA KUMAR -IV J.

FIRST APPEAL No.210 of 2011

Khalid Mukhtar ...Appellant
Versus
M/S
Pradishiya
Industrial
&
Investment
Corporation Ltd. & Anr. ...Respondents

Counsel for the Appellant:
Sri Manish Goyal, Sri Raj Kumar Singh
Chauhan,
Ms.
Ankita
Jain