# Chandra Prakash Mishra & Ors v. State of U.P. & Ors

- **Citation:** (2024) 12 ILRA 572
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-17
- **Case number:** First Appeal No. 1020 of 2023
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-prakash-mishra-ors-v-state-of-u-p-ors-51278
- **Pages:** 6

## Headnote

A. Civil Procedure Code, 1908 - Order VII
Rule 11 - Court Fees Act,1870 - Section .
13 - Refund of fee paid on memorandum
of appeal. Issue: Whether, in a case where
the decision of the trial court rejecting the
plaint is reversed in appeal, the plaintiffs
are required to again deposit court fees
before the trial court after remand? -
Section 13 of the Court Fees Act, casts an
obligation upon the appellate court to
grant
a
certificate
to
the
appellant
authorizing him to receive back from the
Collector the full amount of fees paid on
the memorandum of appeal, and the
proviso restricts such right to the extent
of the amount originally paid. (Para 13)

B. Civil Procedure Code, 1908 - Order VII
Rule 11 - Court Fees Act,1870 - Section 13
- Remand - Refund of fee paid on
memorandum of appeal. In the instant
case, plaintiff failed to deposit the ad
valorem court fees. Plaint was rejected
under Order VII Rule 11 C.P.C. Before the
trial court, court fees of ₹700/- were paid.
In the First Appeal, before the High Court,
Appellants deposited the entire court fees
as determined by the trial court, i.e., court
fees of ₹2,27,000/- were deposited by the
appellant. Held: Appellant not liable to
again pay court fees after remand, and the
court fees of ₹2,27,000/- deposited before
the High Court were held to be sufficient
in relation to the original suit. Appellant
authorized to receive back from the
Collector,
Prayagraj,
court
fees
of
₹2,27,000/-. (Para 18)

Allowed. (E-5)

List of Cases cited:

## Text

572 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution witnesses, it shall also ensure
on the next date that the summons issued to
the witnesses, must have duly been issued
by the office and served upon the
person/authority/witness concerned.

28. Copy of this order be sent to
the Director General of Police, U.P.,
Lucknow, the Additional Director General
(Prosecution), U.P., Lucknow, the Senior
Superintendent of Police, Etah as well as to
the concerned trial court for necessary
information and compliance.
----------
(2024) 12 ILRA 572
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

First Appeal No. 1020 of 2023

Chandra Prakash Mishra & Ors.
 ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Manoj Kumar Singh

Counsel for the Respondents:
Arun Kumar, Ashish Kumar Singh

A. Civil Procedure Code, 1908 - Order VII
Rule 11 - Court Fees Act,1870 - Section .
13 - Refund of fee paid on memorandum
of appeal. Issue: Whether, in a case where
the decision of the trial court rejecting the
plaint is reversed in appeal, the plaintiffs
are required to again deposit court fees
before the trial court after remand? -
Section 13 of the Court Fees Act, casts an
obligation upon the appellate court to
grant
a
certificate
to
the
appellant
authorizing him to receive back from the
Collector the full amount of fees paid on
the memorandum of appeal, and the
proviso restricts such right to the extent
of the amount originally paid. (Para 13)

B. Civil Procedure Code, 1908 - Order VII
Rule 11 - Court Fees Act,1870 - Section 13
- Remand - Refund of fee paid on
memorandum of appeal. In the instant
case, plaintiff failed to deposit the ad
valorem court fees. Plaint was rejected
under Order VII Rule 11 C.P.C. Before the
trial court, court fees of ₹700/- were paid.
In the First Appeal, before the High Court,
Appellants deposited the entire court fees
as determined by the trial court, i.e., court
fees of ₹2,27,000/- were deposited by the
appellant. Held: Appellant not liable to
again pay court fees after remand, and the
court fees of ₹2,27,000/- deposited before
the High Court were held to be sufficient
in relation to the original suit. Appellant
authorized to receive back from the
Collector,
Prayagraj,
court
fees
of
₹2,27,000/-. (Para 18)

Allowed. (E-5)

List of Cases cited:

1. Chandra Bhushan Misra Vs Jayatri Devi, AIR
1969 All 142 (FB)

2. St. of U.P. Vs Chandra Bhushan Misra, AIR
1980 SC 591

3. Srivatsa Goswami Vs Anant Prasad Singh &
anr., 2024 (162) ALR 834

(Delivered by Hon'ble Kshitij Shailendra, J.)

ON THE ISSUE OF REFUND OF
COURT
FEES
IN
A
CASE
OF
REMAND

1. Heard Shri Rahul Sripat, learned
Senior Counsel assisted by Shri Manoj
Kumar Singh, for the appellants, Shri
Ashish Kumar Singh, learned counsel for
the contesting defendant-respondent, Shri
Arun
Kumar,
learned
counsel
for
respondent No.4 and Shri Vinod Kumar
12 All. Chandra Prakash Mishra & Ors. Vs. State of U.P. & Ors.
573
Sahu, learned Additional Chief
Standing Counsel for the respondent Nos.
1, 2, 3 and 5.

APPEAL
AGAINST
REJECTION OF PLAINT

2. The instant appeal arises out of
rejection of plaint under Order VII Rule 11
C.P.C. on the ground that despite earlier
order of the trial court, the plaintiff has
failed to deposit the ad valorem court fees.

PREVIOUS PROCEEDINGS IN
THIS APPEAL

3. On 18.11.2024, following order
was passed:

"1. A mention was made
from the respondents side in the
morning stating that the appeal may
be allowed. Therefore, the Court
has taken up the matter at 03:55
P.M.
2. When the matter was taken up,
learned counsel for the appellants
submitted that for non-payment of
court
fees
pursuant
to
determination of issues framed in
that regard, plaint was rejected and
in the instant first appeal, the
appellants have deposited the entire
court fees as determined by the trial
court, however, once the appeal is
allowed and the plaint is revived,
the appellants shall have to again
deposit
the
court
fees
and,
therefore, the court fees deposited
in this first appeal be treated as
court fees in the suit.
3.
Shri Ashish
Kumar
Singh, learned counsel for the
respondents however, vehemently
opposes
this
submission
and
submits that against the order
passed by the trial court deciding
issues of valuation and court fees,
the plaintiff filed First Appeal From
Order under Section 6-A of the
Court Fees Act, however, no order
could be passed therein and, in the
meantime, the plaint was rejected
under Order 7 Rule 11 CPC and
whatever court fees has been
deposited before the first appellate
court,
that
is
the
statutory
requirement of law and, in no
circumstances, the said court fees
can be treated as court fees in the
suit even if the appeal is allowed
and the order and decree impugned
therein are set aside
4. Both the learned counsel
shall address the Court on this issue
on the next date fixed.
5. List for final hearing on
17.12.2024 at 02:00 P.M. "

4. Learned counsel for the parties
agree for final disposal of the appeal. The
appeal is, accordingly, admitted for final
hearing. In view of the limited controversy
involved in this case, summoning the
record of the trial court is not deemed
necessary.

5.

Following
point
for
determination is framed under Order XLI
Rule 31 C.P.C:

"Whether in a case where
decision of the trial court rejecting
the plaint is reversed in Appeal,
plaintiffs are required to again
deposit court fees before the trial
court after remand?"

SUBMISSIONS
OF
APPELLANTS
574 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Shri Rahul Sripat, learned
Senior Counsel submits that in view of the
previous order of this Court and the
objection raised by the other side, the point
to be decided in this appeal revolves around
Section 13 of the Court Fees Act, 1870
(hereinafter referred to as "Act, 1870"). The
submission
is
that
there
being
no
requirement to deposit court fees twice as
the adjudication on merits has to be made
by the trial court, a certificate in terms of
Section 13 of the Act, 1870 may be granted
by this Court while disposing of the instant
appeal. Reliance has been placed upon a
Full Bench decision of this Court in
Chandra Bhushan Misra vs. Jayatri Devi;
AIR 1969 All 142 (FB) wherein the
reference was answered in terms of Section
13 of the Act, 1870. The said decision has
been upheld by the Supreme Court in State
of U.P. vs. Chandra Bhushan Misra, AIR
1980 SC 591. It is further urged that since
plaint has been rejected by the trial court on
one of the grounds mentioned in the Code
of Civil Procedure and since the matter has
to be heard finally by the trial court on all
issues, the decision in this appeal would be
in the nature of an order of remand under
Order XLI Rule 23 C.P.C. In support of this
submission, reliance has been placed on
recent decision of this Court in Srivatsa
Goswami vs. Anant Prasad Singh and
Another, 2024 (162) ALR 834.

SUBMISSIONS
OF
RESPONDENTS

7. Per contra, Shri Ashish Kumar
Singh submits that the appellants cannot
get advantage of decision of the Full Bench
judgment in Chandra Bhushan Misra
(supra) and, by referring to paragraph No.
51 of the report, it is contended that the
Full Bench was of the view that a litigant
should be relieved of burden to pay court
fees when an 'erroneous decision' of the
lower court is set aside or reversed,
however, in the present case, since the
earlier order of the trial court deciding
issues on valuation/payment of court fees
was assailed before this Court in First
Appeal from Order under Section 6-A of
the Act, 1870 and no relief was granted to
the appellant, the decision cannot said to be
erroneous.

ANALYSIS
OF
RIVAL
CONTENTIONS

8. In order to decide the issue
involved, first of all reference of Section 13
of Act, 1870 should be made. It is quoted
hereinunder:

"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
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, authorising
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
authorise the appellant to receive
back more than so much fee as
would have been originally payable
on the part or parts of such subject-
12 All. Chandra Prakash Mishra & Ors. Vs. State of U.P. & Ors.
575
matter in respect whereof the suit
has been remanded."

9. A Full Bench of our Court, in
Chandra Bhushan Mishra (supra) has
held as under:

"51.
There
is
another
consideration upon which I find
myself, for the purpose of applying
Section 13 of the Court Fees Act,
unable to limit the reference, to
Order 41, Rule 23 to its original
provisions.
The
object
behind
Section 13 appears to be that court
fee should be levied only once in
the progress of a suit from the
lower court to the appellate court
even though the case is remanded,
for re-trial and the movement to the
appellate court repeated. It appears
to be intended that the litigant
should be relieved of the burden of
court fee in obtaining the removal
of an erroneous decision of the
lower court and a retrial of the case.
That is also demonstrated by the
terms of the proviso to Section 13
which limit the refund of the Court
fee to that part of the subject matter
in respect of which the suit is
remanded. Now, if a refund of the
court-fee is available when the case
is remanded because the appellate
court disagrees with the disposal of
the suit by the lower court on the
preliminary point, I am unable to
discern any reason why the same
right should not be recognised in an
appellant if the appellate court
finds it necessary to remand the
case on any other ground. The
remand of the case for retrial is. I
think, the material event entitling
the appellant to a refund of the
court fee. It is immaterial that the
remand has been ordered for one
reason or another.
53. For all these reasons, I
am of opinion that an appellant is
entitled to a refund of the court fee
paid on the memorandum of appeal
whenever the appeal is. remanded
under Order 41, Rule 23 as
amended by this Court. In my
judgment the statement of the law
to this effect in 1964 All LJ 868
accords to the true position in law.
The application of the appellant
under Section 13 of the Court Fees
Act should be allowed with costs."

10. The Supreme Court has
affirmed the aforesaid decision in the State
of U.P. (supra) by holding that reference
was rightly answered by the Full Bench
and, consequently, the appeal filed by the
State of U.P. was dismissed.

11. Though it is true that at one
place in paragraph No. 51 of the decision,
the Full Bench has observed regarding
removal of an 'erroneous decision' of the
lower court, in the same paragraph it has
been observed that 'nature of remand for
one reason or the other is immaterial'. Even
otherwise, the entire judgment and the ratio
laid down has to be seen.

12. Here, judgment of Madhya
Pradesh High Court in Suresh Kumar
Chowkse v. State of Madhya Pradesh and
another, 1985 M.P.L.J. 758 also needs
reference. The said case had arisen out of
an order passed by the District Judge,
Shivpuri in a civil appeal, by which, he had
refused refund of Court fees as provided
under Section 13 of the Madhya Pradesh
Court Fees Act, 1870. The High Court,
after considering the provisions of Section
576 INDIAN LAW REPORTS ALLAHABAD SERIES
13 which are pari materia with the one
applicable in the State of U.P. as well as the
provisions of Order XLI Rule 23 C.P.C.
held as under:-

"This provision makes it
abundantly clear that if a suit is
remanded in appeal on any of the
grounds mentioned in Section 351
of the Code (now Section 23 and
Section 23-A) for a second decision
by the lower Court, the appellate
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. When the
appellate Court remanded the case
for complete re-trial, it was the
bounden duty of the appellate
Court to grant the said certificate to
the appellant authorising him to
receive back from the Collector the
full amount of Court-fee paid on
the memorandum of appeal. This
provision of the Court-fees Act is
enacted with a view that when a retrial is ordered by the appellate
Court and the case is remanded to
the trial Court for complete re-trial,
then the Court-fees paid by the
appellant should not be withheld as
a measure of penalty, the reason
being that now for the second time
if the party becomes aggrieved by
the judgment and decree of the trial
Court, then he shall have to file an
appeal again in the appellate Court
and then he shall be required to pay
the Court-fees again. Thus, if the
Court-fee is not returned, he will
have to pay Court-fee twice for
getting one justice. This double
jeopardy, which will be caused to
the party, is not only against the
principles of equity and justice but
is also against the principles of law.
Ku. Shanti Shrivastava, learned
counsel for the State, has placed for
reliance in the case of Kishan
Sarup, (AIR 1975 Punjab and
Haryana 22). The judgment rather
favours the appellant, than the party
which has cited it. "

13. Therefore, it is clear that
Section 13 casts an obligation upon the
appellate court to grant a certificate to the
appellant authorizing him to receive back
from the Collector the full amount of fees
paid on the memorandum of appeal and the
proviso restricts such right to the extent of
the amount originally paid.

14. There is no dispute between
the parties that although before the trial
court, court fees of Rs. 700/- was paid, in
the instant First Appeal, court fees of Rs.
2,27,000/- has been deposited by the
appellant. In view of the above-referred
decisions, this Court is of the view that
the appellant is not liable to again pay
court fees after remand and the court fees
of Rs. 2,27,000/- deposited before this
Court, after determination made by the
competent officer of this Court, is held to
be sufficient in relation to the Original
Suit No. 1032 of 2006. The point for
determination framed above is answered
accordingly.

15. The appeal is allowed. The
impugned judgment and order dated
23.03.2023
and
the
decree
dated
05.04.2023 passed by the Judge Small
Causes
Court/Civil
Judge
(Senior
Division), Allahabad in Original Suit
No.1032 of 2006 is set aside. Matter is
remanded to the trial court for decision on
merits.
12 All. Jai Bhagwan Vs. State of U.P. & Ors.
577
16. At this stage, Shri Ashish
Kumar Singh has placed before this Court a
copy of the order dated 02.03.2023 passed
by this Court in Matter under Article 227
No.1786 of 2023 whereby the trial court
was directed to decide the aforesaid suit in
six months.

17. Accordingly, the trial court
shall decide the suit proceedings most
expeditiously. Evidence of the plaintiffs
shall be concluded in three months,
evidence of defendants shall be concluded
in next three months and the suit shall be
decided on merits in next two months.

18. This judgment, in itself, shall
be treated as a certificate in terms of
Section 13 of the Act, 1870 granted to the
appellant authorizing him to receive back
from the Collector, Prayagraj, court fees of
Rs.
2,27,000/-.
The
Collector,
being
representative of the State in district and
State being a party to this appeal, he is
directed to ensure that the aforesaid amount
of court fees is refunded to the appellant
within 2 weeks after a copy of this order is
placed before him. For this purpose, the
Collector
shall
remain
competent
to
delegate his power to any other officer
under his supervision and control.

19.

Allowed
with
aforesaid
observations.
----------
(2024) 12 ILRA 577
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.12.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Public Interest Litigation (PIL) No. 1911 of 2024

Jai Bhagwan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Awadhesh Kumar Mishra, Sri Sunil Kumar
Singh, Sri Vipul Kumar (A.C.), Sri Rai Sahab
Yadav (A.C.)

Counsel for the Respondents:
Sri Abhitab Kumar Tiwari, Sri Sunil Kumar Singh,
C.S.C.

Civil Law- Public interest litigation -
Government School - Use of school land
and farm - Mismanagement of leased
lands - Encroachments - Absence of
statutory committee -Directions issued
for enforcement of Government Order
dated 31.07.2018 - Guidelines framed for
transparent leasing and better educational
outcomes - Composite school system in
rural
U.P.
found
deficient
-
Accountability, attendance, infrastructure
and quality concerns - District authorities
directed
to
implement
corrective
measures. (Para 8)

HELD:
In aforesaid circumstances, this public interest
litigation is disposed of with following directions:
(I) No School's Farm land will be leased out
without a reasoned decision taken by above
referred Committee of concerned School. (II)
The Committee shall consider the condition of
earlier lease, their consideration and whether
earlier income generated was deposited in
School's account or not. Committee shall also
take note of antecedent of lessee. (III) District
Basic Education Officer, Meerut will take note of
shortcomings pointed out in report and will take
necessary steps to address. (IV) District Basic
Education Officer, Meerut will communicate all
53 Schools of District Meerut about this order.
(V) District Magistrate, Meerut as well as District
Basic Education Officer, Meerut will take note of
report and its suggestions and take all efforts to
implement it, as far as possible, if there is no
legal impediment and if necessary be forwarded
to Higher Authority for consideration. (Para 8)

Writ petition disposed of. (E-14)