Shri Anant Mahadeo Godbole Vs. Shri Achut Ganesh Godbole and ors. - Court Judgment

Excerpt:
civil procedure code, 1908-order vii rule 11 r/w order xxiii rule 3a - rejection of plaint - bar to suit to set aside a decree passed in terms of compromise - rule 3a of order xxiii inserted w.e.f. 1.2.1977 - decree passed on 4.10.76 - amendment not retrospective - cause of action relates to the compromise - suit not barred by law.;the question with relation to any suit has to be viewed in relation to the cause of action for the redressal of which the suit is filed. in the instant case as the cause relates to the said compromise from which decree was granted on 4/10/1976, that decree having given the cause, the statutory provisions prevalent on that date shall crystalise the rights between the parties.;order xxiii rule 3 of the c.p.c. not being in existence at that stage 4/10/19 76, obviously the suit could have been filed on the next date. it could have been filed on any date within a period of 3 years because of the statute of limitation, article 113 of the same being omnibus clause.;the cause of action having arisen on or about 4/10/1976 and as per the statutory provision, on that date, if there was no bar to the filing of the suit, the amendment being not retrospective, certainly the suit would lie. the order passed by the trial court under order vii rule 11 of rejecting the plaint, therefore, cannot be sustained. - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act.1. this l.p.a. arises out of a decision in first appeal no. 79 of 1980.2. as the whole matter arises on the applicability of the amended provisions of code of civil procedure, 1908 we are not entering into the details of the matter.3. originally a suit was filed, being special civil suit no. 17 of 1973 in the learned civil judge, senior division at alibaug, dist. raigad. in course of time the matter came to be settled and purshis were filed on 3/10/1976. decree came to be passed in that suit pursuant to a compromise on 4th october, 1976.4. amendment to the code of civil procedure was made on a large scale in 1976 and they were given effect to on and from 1/2/1977.5. but special civil suit no. 17 of 1977 came to be filed by some of the defendants of the special civil suit no. 17 of 1973. a preliminary objection was raised by filing an application under order vii rule 11 of the c.p.c. saying that the suit as filed as barred by law.6. for this purpose, reliance was placed on the amended provisions of order xxiii rule 3a which specifically bars a suit in relation to a decree that has been drawn pursuant to a compromise under order xxiii of the c.p.c.7. the trial court rejected the plaint under order vii rule 11 of the c.p.c. and it being an appellable order, the first appeal came to be filed before this court. on having rejected the first appeal, the present l.p.a. came to be filed.8. the question with relation to any suit has to be viewed in relation to the cause of action for the redressal of which the suit is filed. in the instant case as the cause relates to the said compromise from which decree was granted on 4/10/1976, that decree having given the cause, the statutory provisions prevalent on that date shall crystalise the rights between the parties.9. order xxiii rule 3 of the c.p.c. not being in existence at that stage 4/10/1976, obviously the suit could have been filed on the next date. it could have been filed on any date within a period of 3 years because of the statute of limitation, article 113 of the same being omnibus clause.10. the suit came to be filed on 9/2/1977, with reference to the aforesaid discussions, if the filing of the suit on 9/2/1977 is viewed to have been filed as on 4/10/1976 or any date thereafter till the amendment was brought into force, obviously the suit would certainly lay before the trial court. merely because it has been filed within a period of 3 years but after coming into operation of the amending act, in our opinion, no bar of law as envisaged by the trial court and confirmed by the learned single judge could arise.11. the cause of action having arisen on or about 4/10/1976 and as per the statutory provision, on that date, if there was no bar to the filing of the suit, the amendment being not retrospective, certainly the suit would lie. the order passed by the trial court under order vii rule 11 of rejecting the plaint, therefore, cannot be sustained. the order passed by the learned single judge also would therefore go.12. the net result, therefore, is that the appeal succeeds. the orders of the learned single judge and that of the trial court are set aside. the plaint will be taken on record. suit should be proceeded with in accordance with law. it is further directed that at the time of filing of the suit, the stay granted as to the execution of the compromise decree shall also stands revived.13. parties to act on a copy of this order duly authenticated by the sheristedar.