In the present case none of the ingredients of Section
89 of CPC are available as the Civil suit was a contested
matter in which objection of the respondent No. 4 has been
sustained and upheld by the learned trial Cout without there
being any consent of the present petitioner to amicably take
the matter to arbitration. Therefore, it can not be said that
the order dated 11.11.2009 meet the requirements of
Section 89 of CPC. Similarly Order 7 Rule 10 of CPC
provides that subject to the provisions to the Order 7 Rule
10 A of CPC the plaint shall at any stage of the suit be
returned to be presented to the Court in which the suit
should have been instituted. In the present case it is
apparent from the order dated 11.11.2009,annexure P/3 that
the plaint was not returned for presenting before the
appropriate Court. In the present case objection of the
defendant No. 4 was upheld and the suit was dismissed on
the ground of lack of jurisdiction due to availability of
alternate remedy of arbitration.
9. Section 16 of the Court Fees Act, 1870 provides for
refund of fee where a suit/dispute is settled in terms of
Section 89 of CPC,1908. As has been observed above the
suit in question was not decided in terms of the requirement
of Section 89 of CPC, therefore, there is no infirmity in the
order dated 01.04.2010 passed by the Court of 3rd Additional
District Judge, Morena.
IN THE HIGH COURT OF MADHYA PRADESH, BENCH
GWALIOR
Writ Petition No.2833/2010 (I)
Shriji Ware House V Madhya Pradesh State Civil Supplies Corporation Ltd., & ors.
Present : Hon. Mr. Justice Vivek Agarwal
O R D E R
(14.06.2016 )
Citation:AIR 2016 MP 187
In this writ petition, petitioner has challenged the order
dated 01.04.2010 passed by 3rd Additional District Judge,
Morena in Civil Suit No. 1B/2009. The petitioner had filed an
application for refund of Court fees of Rs. 20,640/- after
dismissal of the suit No. 1B/2009 which was filed on
06.07.2009. In the said suit, respondent No. 4 had filed an
application under Order 7 Rule 11 of CPC which was
decided vide order dated 11.11.2009 and suit of the plaintiff
was dismissed with a direction that matter be referred to an
arbitrator.
2. In the present petition, petitioner claimed refund of the
Court fees on the ground that when the suit was returned for
filing before the Court of competent jurisdiction, in terms of
the Provisions contained in Order 7 Rule 10 CPC petitioner
is entitled to refund of the Court fees. It is further submitted
that the Proceedings of the trial Court will be deemed to be
proceedings under Section 89 of CPC and, therefore, order
dated 11.11.2009 being an order under Section 89 of CPC,
petitioner is entitled for refund of Court fees. He has also
referred to Section 16 of the Court Fees Act,1870 in support
of the claim that petitioner is entitled to a certificate from the
Court authorizing him to receive back the Court fee from the
Collector, the full amount of the fee be paid in respect of
such plaint. The petitioner has referred to few decisions in
support of his claim for refund of the Court fees. The first
decision is of Punjab and Haryana High Court in the matter
of Bhura Mal Dan Dayal Vs. Imprial Flour Mills Limited and
Ors. as reported in AIR 1959 Punjab 629 in support of his
claim for refund of Court fees. Facts of the present case are
totally different from the facts of the case of Bhura Mal Dan
Dayal Vs. Imprial Flour Mills Limited and Ors. in as much as
in the later case Court having no jurisdiction over the subject
matter of the suit had returned the plaint for presentation to
the appropriate Court of competent jurisdiction. This Court
has already observed that Provisions of Order 7 Rule 10 will
be applicable only when plaint is returned for being
presented to the appropriate Court but in the present case
as plaint was not returned, ratio of this decision will not help
the petitioner.
3. Petitioner has similarly relied on the decision in the
case of Mamidi Lakshminayana Vs. Akula Satyanarayana
and Ors. as reported in AIR 1963 Andra Pradesh 68. In that
case also on the basis of peculiarity jurisdiction, the plaint
was returned for presentation before the appropriate Court,
therefore, again ratio of the said decision is not in favour of
the petitioner and facts are distinguishable. Petitioner has
also placed reliance on the decision of the Delhi High Court
as reported in AIR 1969 Delhi 130 in case of Chief
Controlling Revenue Authority and another Vs. Fertilizer
Corporation of India Ltd. And others. Facts of that case are
also different where the plaint was returned by Hoshiyarpur
Civil Court for being presented to a competent Court at
Delhi as the territorial jurisdiction of the subject matter of the
suit was not with the Hoshiyarpur Civil Court.
4. The question for adjudication in the present case is
whether the order dated 11.11.2009 will fall within the
purview of Section 89 of CPC or within the purview of Order
7 Rule 10 of CPC, thus, entitling the petitioner to invoke the
Provisions of Section 16 of the Court Fees Act 1870.
5. This Court has perused the record and it is apparent
from the order dated 11.11.2009 that defendant No. 4 had
moved an application under Order 7 Rule 11 read with
Section 151 of CPC. It was submitted by the defendant No.
4 that a lease agreement was executed between the parties
on 02.06.2008 and the said lease agreement provides for
referring a dispute between the parties to an arbitrator,
whose decision shall be binding on both the parties. The
plaintiff had filed reply to the said application under Order 7
Rule 11 and had contested that defendant No. 4 has since
not paid the rent, therefore, the dispute need not be referred
to the arbitrator and the objection raised by the defendant
No. 4 is unnecessary. It was also submitted that such
application was filed merely to delay the proceedings.
6. After hearing the parties, learned 3rd Additional District
Judge, Morena had accepted the application under Order 7
Rule 11 of CPC and had dismissed the suit on the ground of
suit being not maintainable within the jurisdiction of learned
trial Court in terms of the stipulations of the agreement, it is
apparent from the order dated 11.11.2009 that the suit was
not returned for filing before the arbitrator.
7. At this stage, it will be profitable to refer to Section 89
of CPC which reads as under:-
“It is apparent that where it appears to the Court that
there exist element of settlement acceptable to the
parties, it is the Court may formulate the terms of
possible settlement and refer the same for arbitration.
Thus the basic requirement of tracing into service, the
Provisions of Section 89 of CPC is that the Court should
be satisfied of availability elements of a settlement, those
elements should be acceptable to the parties and then
the Court should formulate the terms of a possible
settlement and refer them to either arbitration,
conciliation, judicial settlement including settlement
through Lok Adalat or mediation.”
8. In the present case none of the ingredients of Section
89 of CPC are available as the Civil suit was a contested
matter in which objection of the respondent No. 4 has been
sustained and upheld by the learned trial Cout without there
being any consent of the present petitioner to amicably take
the matter to arbitration. Therefore, it can not be said that
the order dated 11.11.2009 meet the requirements of
Section 89 of CPC. Similarly Order 7 Rule 10 of CPC
provides that subject to the provisions to the Order 7 Rule
10 A of CPC the plaint shall at any stage of the suit be
returned to be presented to the Court in which the suit
should have been instituted. In the present case it is
apparent from the order dated 11.11.2009,annexure P/3 that
the plaint was not returned for presenting before the
appropriate Court. In the present case objection of the
defendant No. 4 was upheld and the suit was dismissed on
the ground of lack of jurisdiction due to availability of
alternate remedy of arbitration.
9. Section 16 of the Court Fees Act, 1870 provides for
refund of fee where a suit/dispute is settled in terms of
Section 89 of CPC,1908. As has been observed above the
suit in question was not decided in terms of the requirement
of Section 89 of CPC, therefore, there is no infirmity in the
order dated 01.04.2010 passed by the Court of 3rd Additional
District Judge, Morena. Thus, this writ petition under Article
227 of Constitution of India fails and is dismissed.
Parties to bear their own cost.
(Vivek Agarwal)
Judge
89 of CPC are available as the Civil suit was a contested
matter in which objection of the respondent No. 4 has been
sustained and upheld by the learned trial Cout without there
being any consent of the present petitioner to amicably take
the matter to arbitration. Therefore, it can not be said that
the order dated 11.11.2009 meet the requirements of
Section 89 of CPC. Similarly Order 7 Rule 10 of CPC
provides that subject to the provisions to the Order 7 Rule
10 A of CPC the plaint shall at any stage of the suit be
returned to be presented to the Court in which the suit
should have been instituted. In the present case it is
apparent from the order dated 11.11.2009,annexure P/3 that
the plaint was not returned for presenting before the
appropriate Court. In the present case objection of the
defendant No. 4 was upheld and the suit was dismissed on
the ground of lack of jurisdiction due to availability of
alternate remedy of arbitration.
9. Section 16 of the Court Fees Act, 1870 provides for
refund of fee where a suit/dispute is settled in terms of
Section 89 of CPC,1908. As has been observed above the
suit in question was not decided in terms of the requirement
of Section 89 of CPC, therefore, there is no infirmity in the
order dated 01.04.2010 passed by the Court of 3rd Additional
District Judge, Morena.
IN THE HIGH COURT OF MADHYA PRADESH, BENCH
GWALIOR
Writ Petition No.2833/2010 (I)
Shriji Ware House V Madhya Pradesh State Civil Supplies Corporation Ltd., & ors.
Present : Hon. Mr. Justice Vivek Agarwal
O R D E R
(14.06.2016 )
Citation:AIR 2016 MP 187
In this writ petition, petitioner has challenged the order
dated 01.04.2010 passed by 3rd Additional District Judge,
Morena in Civil Suit No. 1B/2009. The petitioner had filed an
application for refund of Court fees of Rs. 20,640/- after
dismissal of the suit No. 1B/2009 which was filed on
06.07.2009. In the said suit, respondent No. 4 had filed an
application under Order 7 Rule 11 of CPC which was
decided vide order dated 11.11.2009 and suit of the plaintiff
was dismissed with a direction that matter be referred to an
arbitrator.
2. In the present petition, petitioner claimed refund of the
Court fees on the ground that when the suit was returned for
filing before the Court of competent jurisdiction, in terms of
the Provisions contained in Order 7 Rule 10 CPC petitioner
is entitled to refund of the Court fees. It is further submitted
that the Proceedings of the trial Court will be deemed to be
proceedings under Section 89 of CPC and, therefore, order
dated 11.11.2009 being an order under Section 89 of CPC,
petitioner is entitled for refund of Court fees. He has also
referred to Section 16 of the Court Fees Act,1870 in support
of the claim that petitioner is entitled to a certificate from the
Court authorizing him to receive back the Court fee from the
Collector, the full amount of the fee be paid in respect of
such plaint. The petitioner has referred to few decisions in
support of his claim for refund of the Court fees. The first
decision is of Punjab and Haryana High Court in the matter
of Bhura Mal Dan Dayal Vs. Imprial Flour Mills Limited and
Ors. as reported in AIR 1959 Punjab 629 in support of his
claim for refund of Court fees. Facts of the present case are
totally different from the facts of the case of Bhura Mal Dan
Dayal Vs. Imprial Flour Mills Limited and Ors. in as much as
in the later case Court having no jurisdiction over the subject
matter of the suit had returned the plaint for presentation to
the appropriate Court of competent jurisdiction. This Court
has already observed that Provisions of Order 7 Rule 10 will
be applicable only when plaint is returned for being
presented to the appropriate Court but in the present case
as plaint was not returned, ratio of this decision will not help
the petitioner.
3. Petitioner has similarly relied on the decision in the
case of Mamidi Lakshminayana Vs. Akula Satyanarayana
and Ors. as reported in AIR 1963 Andra Pradesh 68. In that
case also on the basis of peculiarity jurisdiction, the plaint
was returned for presentation before the appropriate Court,
therefore, again ratio of the said decision is not in favour of
the petitioner and facts are distinguishable. Petitioner has
also placed reliance on the decision of the Delhi High Court
as reported in AIR 1969 Delhi 130 in case of Chief
Controlling Revenue Authority and another Vs. Fertilizer
Corporation of India Ltd. And others. Facts of that case are
also different where the plaint was returned by Hoshiyarpur
Civil Court for being presented to a competent Court at
Delhi as the territorial jurisdiction of the subject matter of the
suit was not with the Hoshiyarpur Civil Court.
4. The question for adjudication in the present case is
whether the order dated 11.11.2009 will fall within the
purview of Section 89 of CPC or within the purview of Order
7 Rule 10 of CPC, thus, entitling the petitioner to invoke the
Provisions of Section 16 of the Court Fees Act 1870.
5. This Court has perused the record and it is apparent
from the order dated 11.11.2009 that defendant No. 4 had
moved an application under Order 7 Rule 11 read with
Section 151 of CPC. It was submitted by the defendant No.
4 that a lease agreement was executed between the parties
on 02.06.2008 and the said lease agreement provides for
referring a dispute between the parties to an arbitrator,
whose decision shall be binding on both the parties. The
plaintiff had filed reply to the said application under Order 7
Rule 11 and had contested that defendant No. 4 has since
not paid the rent, therefore, the dispute need not be referred
to the arbitrator and the objection raised by the defendant
No. 4 is unnecessary. It was also submitted that such
application was filed merely to delay the proceedings.
6. After hearing the parties, learned 3rd Additional District
Judge, Morena had accepted the application under Order 7
Rule 11 of CPC and had dismissed the suit on the ground of
suit being not maintainable within the jurisdiction of learned
trial Court in terms of the stipulations of the agreement, it is
apparent from the order dated 11.11.2009 that the suit was
not returned for filing before the arbitrator.
7. At this stage, it will be profitable to refer to Section 89
of CPC which reads as under:-
“It is apparent that where it appears to the Court that
there exist element of settlement acceptable to the
parties, it is the Court may formulate the terms of
possible settlement and refer the same for arbitration.
Thus the basic requirement of tracing into service, the
Provisions of Section 89 of CPC is that the Court should
be satisfied of availability elements of a settlement, those
elements should be acceptable to the parties and then
the Court should formulate the terms of a possible
settlement and refer them to either arbitration,
conciliation, judicial settlement including settlement
through Lok Adalat or mediation.”
8. In the present case none of the ingredients of Section
89 of CPC are available as the Civil suit was a contested
matter in which objection of the respondent No. 4 has been
sustained and upheld by the learned trial Cout without there
being any consent of the present petitioner to amicably take
the matter to arbitration. Therefore, it can not be said that
the order dated 11.11.2009 meet the requirements of
Section 89 of CPC. Similarly Order 7 Rule 10 of CPC
provides that subject to the provisions to the Order 7 Rule
10 A of CPC the plaint shall at any stage of the suit be
returned to be presented to the Court in which the suit
should have been instituted. In the present case it is
apparent from the order dated 11.11.2009,annexure P/3 that
the plaint was not returned for presenting before the
appropriate Court. In the present case objection of the
defendant No. 4 was upheld and the suit was dismissed on
the ground of lack of jurisdiction due to availability of
alternate remedy of arbitration.
9. Section 16 of the Court Fees Act, 1870 provides for
refund of fee where a suit/dispute is settled in terms of
Section 89 of CPC,1908. As has been observed above the
suit in question was not decided in terms of the requirement
of Section 89 of CPC, therefore, there is no infirmity in the
order dated 01.04.2010 passed by the Court of 3rd Additional
District Judge, Morena. Thus, this writ petition under Article
227 of Constitution of India fails and is dismissed.
Parties to bear their own cost.
(Vivek Agarwal)
Judge
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