Rangnath Lahanu Lambhale vs Gopal Kashinath Mulay on 15 November, 1966

JUDGMENT

V.S. Desai, J.

1. This is a reference made by the learned District Judge, Ahemednagar, requiring an interpretation of Section 43 of the Bombay Court-fees Act, 1959, Regular Appeal No, 312 of 1960, which was against an order fixing the standard rent, was fixed for final hearing before the learned District Judge on the 4th of October 1961. When the matter was called out, the parties filed a compromise application and the appeal was disposed of in terms of the compromise without any hearing or arguments. The appellant thereafter applied for a refund of the Court-fees under Section 43 of the Bombay Court-fees Act of 1959 and the question before the Court was whether he was entitled to the said refund. Now the material portion of section 43 is as follows:-

 "43 (1) When   any  suit  in  a  court is  settled  by  agreement  of  parties  before  any  evidence    is  recorded,  or  any  appeal  or  cross objection  is  settled  by  agreement  of  parties   before it is  called  on  for  effective  hearing   by  the Court,  half   the  amount  of  the fee paid  by  the  plaintiff,  appellant,   or  respondent  on the plaint, appeal  or    cross  objection, as  the  case may  be,  shall  be  repaid  to him  by  the Court: 

 .  .    .  .   .    .   .  .    .   .    .   .    .     .    .   .  .  .   .     .      ." 

 

 Explanation:  For  the  purposes  of  this   section effective  hearing   shall  exclude   the dates  when  the  appeal   is merely    adjourned  without  being  heard  and  argued. 

 

  (2)  The  appellant   contends   that  in  the present  case  the  appeal  was  settled  by  agreement  of  the   parties   before  it  was  called   on for  an effective  hearing    and  he is,  therefore,  entitled    to   the  refund  as  provided in  Section  43.  The  learned  District  Judge   is  inclined   to  take  the   view  that  since  the  matter  was  fixed   for  hearing   and  the Court  was ready   to go on  with  it, it  was called  on  for  effective  hearing     when  it  reached   before  the Court  and  as  the settlement   arrived   at  between  the  parties  had  been  presented  to  the  Court   thereafter   the provision of  section  43 had   no  application to  the  case. We  are not  inclined  to  agree  with  the  view  which   the  learned   District  Judge   is  disposed  to  take. 

 

 

  (3)  The  requirement  of  section 43 is  that  the  appeal  must  be  settled  by  an  agreement  of   the parties   before   it  is  called on  for  an  effective  hearing.  The   explanation  appended  to  the  section  shows   that  the  appeal  will not  be regarded  as being   called  on  for   effective   hearing  if  when  it  is  called  on, it  is merely   adjourned   without being  heard or   argued.  Effective   hearing  as   contemplated  by  the  section  is  a   hearing  relating  to  the merits  of  the  appeal  and  consists  of  the  court  applying   its  mind  to  the  merits  of  the case in  the light  of  the  material  on record    and  the arguments  advanced  on behalf  of  the  parties    with a  view   to arrive   at its   decision  in  the  appeal.  The  mere setting  up   of  the  appeal  for  hearing  or  its  being   called  on before  the   Court is not  sufficient  to  constitute  effective  hearing   of  the  appeal.  Nor   can  the  appeal  be  said   to have been  called on for   an  effective    hearing  unless   the 'calling on'  of  the  appeal  is  followed  by  the   appeal  being  heard  and  argued .  What  the section  means   of  its  proper   interpretation is  that  if  the appeal   or  cross-objections  is   settled   by an  agreement  of  the  parties  before it  commences  to  be  effectively  heard,   that   is,  before  the  court  proceeds  to  apply  its  mind  to  the merits  of  the  case in the light   of  the material  on record   and  the  argument   which  may be  advanced  before  it,   the  appellant  or  the  respondent  as the  case  may  be  will be  entitled  to   the    benefit  of    the section. In  the  present   case,  as  soon  as  the  appeal was  called out,  the parities instead  of  entering   upon  the hearing  of  the  matter  on  merits   presented    the  court  with  a  settlement  which had   been arrived  at  between   them. In  our opinion, there was  no  effective   hearing    of  the matter  at  the stage  when  the settlement  was   arrived  at  by  the parties  and  presented  before  the Court.  It  may  be pointed out  that   the  settlement   which  was  arrived   at  between   the  parties  before  the  matter   came  for   bearing   would  normally    be  presented  to  the Court  only on  the   date on which  the  appeal   was fixed.  The  mere  circumstances,  therefore,  that   a  compromise  note  was not  filed  before  the  Court  before  the date   on which it  was fixed   for  hearing   will not  amount to  the  settlement   having  been  effected  after  the case had been  called   out  for effective   hearing.  The  view  that  we are   taking is  also    taken  by one  of us in   Civil  Revision  Application No.  550  of  1962  decided   on the  18th  of  October  1965.  In  our    opinion,  therefore,  on a  correct interpretation  of  the  provisions  of  Section 43,  its  provisions  will have  application  to  a  case  where parties  to  an  appeal   arrive    at  a  settlement    and  present  it  to the Court  even  on  the  day  on which the  appeal is  fixed  for hearing  before   any  actual   hearing of  the  appeal on merits  takes  place  before  the Court.  The learned  District   Judge    has  stated  in his reference  that  that  is  also  the   prevailing   practice  in the  Courts.  In  our  opinion  the said  practice   is  correct    and     in  accordance   with the provision   of  section 43. 

 

  (4)  In our opinion,  therefore,  the  appellant is entitled to   the  refund  which  he  has  claimed.  We  answer   the reference  accordingly. No  order  as to costs. 

 

 (5) Order  accordingly.