S T Hemegowda Vs Sarojamma

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 16.07.2019 PASSED BY THE SR. CIVIL JUDGE AND JMFC AT MALUR IN OS.NO.124/2011 FILED AS ANNEXURE-A & ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This writ petition is filed challenging the order dated 16.07.2019 passed in O.S.No.124/2011 by the Senior Civil Judge and JMFC at Malur (for short, 'the trial Court' ).

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Sri.Shrihari K., learned counsel appearing for the petitioner-plaintiff No.1 submits that the plaintiffs' suit for specific performance of the agreement of sale ended in compromise. The parties have filed an application under Order XXIII Rule 3 of CPC was filed before the trial Court

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HC-KAR

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and thereafter the plaintiffs sought to refund the eligible

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Court fee. The trial Court, under the impugned order, erroneously rejected the prayer holding that the dispute is not settled under ADR methods and moreover, the evidence is also recorded in the case. It is further submitted that the trial Court has missed the effect of Section 66(2) of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short, 'the Act' ). And in support of his contention, he placed reliance on the decision of this Court in the case of Sagar Enterprises vs. The Registrar,

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City Civil Court, Bangalore¹ . Hence, he seeks to allow the petition.

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Though the notice is served, there is no

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representation for the respondent-State.

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I have heard the arguments of the learned counsel for the petitioner and perused the material

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available on record.

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1 ILR 2004 KAR 4376

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HC-KAR

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The plaintiffs have filed a suit in

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O.S.No.124/2011 for a relief of specific performance of the

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agreement of sale. The parties have filed an application under Order XXIII Rule 3 of CPC produced at Annexure-D, wherein the dispute was settled between the parties outside the Court.

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Section 66 of the Karnataka Court Fees and Suits Valuation Act, 1958, provides for refund of Court fees on settlement before hearing. Section 66(1) provides where the Court refers the parties to the suit to any one of the modes of settlement of dispute referred to in Section 89 of the Code of Civil Procedure, 1908 and the dispute is settled, the party would be entitled to 75% of the amount of Court fee paid and the same is now amended to 100% by amending the said Section by Act 37 of 2020 with effect from 31.07.2020. In the case on hand, the 2020 amendment would not apply and prior to the said amendment, refund of Court fee was 75%.

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HC-KAR

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It is required to be noticed that sub-section (2)

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of Section 66 of the Act covers the cases which are not covered under sub-section (1) of Section 66; whenever by agreement of parties- (a) any suit is dismissed as settled out of the Court before any evidence has been recorded on the merits of the claim; or (b) any suit is compromised ending in a compromise decree before any evidence has been recorded on the merits of the claim, then the party is entitled to refund of 75% of the amount of Court fee paid in respect of the claim in the suit.

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The learned Single Judge of this Court in the case of Sagar Enterprises referred supra by considering the cases falling under sub-section 2 of Section 66 of the Act, has held at paragraph Nos.9 to 11 as under:

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" 9. The short question that arises for consideration in this Writ Petition is:

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Whether receipt of Plaintiff's affidavit in lieu of oral evidence as per Rule 4 to Order 18 of CPC is sufficient to hold that evidence is recorded within the scope of Section 66 of the Act?

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HC-KAR

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10. My answer to the above point is in the negative for the following reasons:

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Admittedly, the Court has not spent any time in recording evidence in the suit. Further, the Defendant has not cross examined P.W-1. On the other hand, the Plaintiff and the Defendant, by mutual consent, have got their dispute settled out of Court. In this regard, it will be useful to refer to the decision reported in (P.B. Rai v. Reza Jalali [ILR 1985 Kar 2385 252.] ). In the above-said case, this Court has held that the benefit of refund of half the amount of Court fee paid on the claim in a Suit, made available to a Suitor under Section 66 of the Act was intended to achieve dual beneficial purposes, viz.,

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(i) of encouraging parties to a suit, to settle by agreement, the claim in such suit out of Court itself that too, in the very initial stages of such suit, so that they may be saved of their time and expenses of a prolonged litigation, and

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(ii) of giving relief to the Court concerned which is invariably over-burdened.

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11. It is pertinent to mention that the amendment by way of adding Rule 4 to Order 18 of the Code of Civil Procedure is with an intention to reduce prolonged litigation. Therefore, for the purpose of refund of Court fee under Section 66 of the Act, receiving affidavit of the Plaintiff (P.W-1) in lieu of oral evidence cannot be treated as “evidence recorded”. The Court below erred in refusing to order for refund of Court fee as per Section 66 of the Act."

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9. This Court in the aforesaid decision, considering

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the object of Section 66 of the Act, has held that the said

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Section is brought to encourage the parties to the suit to

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HC-KAR

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settle the dispute by agreement at the initial stage of the proceedings so that the parties may save their time and expenses of a prolonged litigation and giving relief to the Court concerned which is invariably over-burdened. The aforesaid decision further makes it clear that receiving the affidavit of the plaintiff in lieu of oral evidence cannot be treated as "evidence recorded".

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10. Considering the object and intent of Section 66

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of the Act and keeping in mind the enunciation of law laid down by this Court in the aforesaid decision, I am of the considered view that the trial Court has committed a grave error in rejecting the prayer for refund of 75% of the Court fees and same deserves to be allowed.

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For the aforementioned reasons, I proceed to pass the following:

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ORDER

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i. Petition is allowed .

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HC-KAR

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ii. The impugned order dated 16.07.2019 passed in O.S.No.124/2011 by the Senior Civil Judge and JMFC at Malur is set aside. The trial Court shall refund 75% of the Court fee to the petitioner-plaintiff immediately.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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BSR List No.: 1 Sl No.: 25

S T Hemegowda v. Sarojamma

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S T Hemegowda v. Sarojamma

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