RANCHHODLAL MANEKAL Vs. MANEKLAL PRANJIVANDAS

JUDGEMENT

(1.) IN this matter, a short point under the Court-fees Act has been raised by Mr. Pathak before us. An application was made by Mr. Pathak on behalf of the appellant for the refund of court-fees paid by him on his memo. of appeal. That application has been rejected by the Registrar, and Mr. Pathak argues that the Registrar's decision is wrong in law. There is no reported decision of this Court precisely on the point raised before us and so at our instance Mr. Gambhirwala has appeared on behalf of the Government Pleader to assist us in deciding this point.

(2.) THE suit from which the appeal arose had been filed by the plaintiff to recover possession of the suit property together with arrears of rent and mesne profits. This claim was resisted by the defendant on several grounds, and the learned Judge framed as many as 13 issues on the pleadings. The plaintiff's claim with regard to the possession was rejected by the learned Judge. His claim with regard to the arrears of rent was decreed. The plaintiff came to this Court against the decision of the learned trial Judge rejecting his claim for possession. Before this Court, the question of jurisdiction was raised under the Rent Act, 57 of 1947. It was contended that the suit fell within the provisions of Bombay Act 57 of 1947, and the argument was that the only Court which had jurisdiction to try this suit was the Court of Small Causes at Ahmedabad. In fact, the suit had been tried by the 3rd Joint Civil Judge (S. D.), Ahmedabad. Rajadhyaksha J. and my brother Vyas who heard this appeal accepted the plea of want of jurisdiction in the trial Court, set aside the decree passed by the trial Court and remanded the case for disposal in accordance with law to the learned Judge of the Small Causes Court at Ahmedabad, It is under these circumstances that Mr. Pathak moved the Registrar for refund of court-fees paid by him on his memo. of appeal. The Registrar took the view that under Section 13 Court-fees Act, refund could be granted only if the Court of appeal remands a case under Order 41, Rule 23 Civil P. C, Since according to the, Registrar the present order of remand was not made under Order 41, Rule 23 the appellant was not entitled to a refund of court-fees. It is this decision which Mr. Pathak seeks to challenge before us.

(3.) MR. Pathak contends that the order of remand passed by this Court in appeal No. 212 of 1949 can really be referred to the provisions of Order 41 Rule 23. Mr. Pathak invites our attention to the fact that he had succeeded on all the issues except one and he suggests that in substance his claim for possession failed on one point only and therefore the decision with regard to that claim should be deemed to have been based on a preliminary issue. We are not prepared to accept this argument. In our opinion, it is clear that the suit was tried on the merits. Several issues were framed, evidence was led by parties on all the issues and the learned Judge decided all these issues. In appeal the question of jurisdiction alone was enough to dispose of the appeal, and having held that the trial Court had no jurisdiction to try the suit, an order of remand became inevitable. This order of remand is clearly referable to the inherent jurisdiction of this Court under Section 151 of the Code. It is obviously not one under Order 41, Rule 25, and it cannot be said to have been made under Order 41, Rule 23 either. Therefore, in our opinion, the Registrar was right in holding that Order 41, Rule 23, did not apply to this order of remand.