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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. DURAISWAMY, J.
K. Swaminathan - Petitioner
Versus
M. Visalakshi & Others - Respondent
C.R.P.(PD). No. 2309 of 2009
Decided On : 14-11-2019
Constitution of India1950 - Article 227 - Civil Procedure Code 1908 - Section 89 - Court Fees Act - Section 69-A - Legal Services Authorities Act 1987 - Section 21(1) - Tamil Nadu Court Fee and Suit Valuation Act - Section 69 - Petitioner submitted that suit was referred before arriving at a compromise on 22-06-2009 and matter was posted Subsequently in view of urgency of matter parties jointly filed a memo to advance hearing and to place suit before Trial Court - Fast Track Court- By joint memo parties requested Legal Services Committee Dharapuram to return matter back to Fast Track Court for recording settlement- Accordingly bundle was returned to Fast Track Court parties reported settlement and also filed a memo seeking for dismissal of suit settled out of Court and for refund of full court fee courts have been referring cases Section mediation by assuming and standing “mediation” to mean a dispute resolution process by negotiated settlement with assistance of a neutral third party- Judicial settlement is stood as referring to a compromise entered by parties with assistance of court adjudicating matter or another Judge to whom court had referred dispute be concluded that proper interpretation of Section 89 of Code requires two changes from a plain and literal reading of section- Firstly it is not necessary for court before referring parties to an ADR process to formulate or reformulate terms of a possible settlement- It is sufficient court merely describes nature of dispute (in a sentence or two) and makes reference- Secondly definitions of “judicial settlement” and “mediation in clauses Section shall have to be interchanged to correct - Clauses of Section Code will read as when two terms are interchanged–Held, Court hold that petitioner was entitled only to refund of half Court fees and writ petition seeking refund of full Court fees is liable to be dismissed- Accordingly writ petition is dismissed- No costs- Consequently connected miscellaneous petition is also dismissed careful consideration of materials available on record and submissions made by learned counsel on either side it could be seen that issue involved in present Civil Revision Petition is with regard to refund of full court fee i-e- when dispute between plaintiff and defendants is settled out of court whether plaintiff is entitled to get refund of full court fee or not- In case on hand though matter was referred for settlement it was not settled before and matter came back Trial Court- Before Trial Court parties had entered into a compromise and also executed a joint memorandum of compromise- In such circumstances plaintiff prays for refund of full court fee case on hand admittedly matter was not settled by any of modes of settlement of dispute referred Section Code of Civil Procedure- That being case Section has no application for case on hand- Since suit was filed in prior to amendment in per Section plaintiff is entitled to get refund of court fee paid by him- Division Bench of this Court in Judgment reported supra that when matter is not settled ADR Mechanism Section Code of Civil Procedure plaintiff is not entitled to get refund of full court fee am of considered view that plaintiff is not entitled to get refund of full court fee and he is entitled to get refund court fee paid by him Section of Tamil Nadu Court Fee and Suit Valuation Act for reason that suit was filed in prior amendment which came into effect only - Petition dismissed
JUDGMENT :
Civil Revision Petition filed under Article 227 of the Constitution of India against the memo dated 03.07.2009 in O.S.No.271 of 2008 on the file of the District Judges Court, Fast Tract Court No.III at Erode.
1. Since the issue involved in the present Civil Revision Petition is with regard to refund of the full court fee, this Court directed the learned counsel appearing for the petitioner to serve the papers on the learned Special Government Pleader (C.S.) enabling him to make his submissions on the issue. In view of the same, Mr.M.Sricharan Rangarajan, learned Special Government Pleader (CS), made his submissions in the Civil Revision Petition, though the Government is not a party.
2. The plaintiff in O.S.No.271 of 2008 on the file of the District Court, Fast Tract Court No.III, Erode has filed the above Civil Revision Petition to set aside the memo dated 03.07.2009 filed in O.S.No.271 of 2008.
3. The plaintiff filed the suit in O.S.No.271 of 2008 for specific performance. The plaintiff and the defendants entered into a compromise and also executed a joint memorandum of compromise on 03.07.2009.
4. Mr.K. Mukunth, learned counsel appearing for the petitioner submitted that the suit was referred before the Lok Adalat for arriving at a compromise on 22.06.2009 and the matter was posted on 03.08.2009 before the Lok Adalat. Subsequently, in view of urgency of the matter, the parties jointly filed a memo to advance the hearing and to place the suit before the Trial Court, viz., Fast Track Court, Dharapuram. By the joint memo, the parties requested the Legal Services Committee, Dharapuram to return the matter back to the Fast Track Court, Dharapuram for recording the settlement. Accordingly, the bundle was returned to the Fast Track Court, Dharapuram, where the parties reported settlement and also filed a memo seeking for dismissal of the suit as settled out of the Court and for refund of the full court fee.
5. The Trial Court, recorded the joint memo filed by the parties.
6.1. The learned counsel appearing for the petitioner contended that since the matter has been settled out of the Court, the plaintiff is entitled to get refund of the full court fee paid by him.
6.2 The learned counsel appearing for the petitioner, in support of his contentions, has relied upon the following judgments:-
“ ... 12. Judicial settlement” is a term in vogue in USA referring to a settlement of a civil case with the help of a Judge who is not assigned to adjudicate upon the dispute. “Mediation” is also a well-known term and it refers to a method of non-binding dispute resolution with the assistance of a neutral third party who tries to help the disputing parties to arrive at a negotiated settlement. It is also a synonym of the term “conciliation”. (See Black's Law Dictionary, 7th Edn., pp. 1377 and 996.)
...
21.6. Justice G.P. Singh extracts four conditions that should be present to justify departure from the plain words of the statute, in his treatise Principles of Statutory Interpretation (12th Edn., 2010, Lexis Nexis, p. 144) from the decision of the House of Lords in Stock v. Frank Jones (Tipton) Ltd. [(1978) 1 WLR 231 : (1978) 1 All ER 948 (HL)] : (WLR p. 237 F-G)
“… a court would only be justified in departing from the plain words of the statute when it is satisfied that: (1) there is clear and gross balance of anomaly; (2) Parliament, the legislative promoters and the draftsman could not have envisaged such anomaly, could not have been prepared to accept it in the interest of a supervening legislative objective; (3) the anomaly can be obviated without detriment to such legislative objective; (4) the language of the statute is susceptible of the modification required to obviate the anomaly.”
...
23. All over the country the courts have been referring cases under Section 8
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