Sanjay K. Agrawal, J.

The petitioner/plaintiff filed a suit for recovery of a sum of Rs. 98,40,586/- jointly and severally against the defendants/respondents. The defendants were proceeded ex parte and ex parte evidence of the plaintiff was recorded and the case was fixed for final hearing, but during the course of final arguments, a specific query was raised with regard to maintainability of suit. The plaintiff took time and filed application under Order 23, Rule 1 (3) of the CPC seeking withdrawal of suit with liberty to file fresh suit and also filed an application seeking return of court fees, under Section 151 of the CPC. The trial Court by its impugned order allowed the application under Order 23, Rule 1 (3) of the CPC and granted liberty to file fresh suit in respect of same cause of action and same subject-matter, but rejected the application under Section 151 of the CPC for refund of court fees against which this writ petition under Article 227 of the Constitution of India has been preferred.

2. Mr. Manoj Paranjpe, learned counsel for the plaintiff/petitioner, would submit that since the plaintiff himself has moved an application for withdrawal of suit before the final judgment could be pronounced after hearing the arguments, he is entitled for remission of court fees under Section 13 of the Court Fees Act, 1870 read with Section 151 of the CPC.

3. Since the matter relates to court fees, Mr. Prafull Bharat, learned Additional Advocate General for the State of Chhattisgarh, was requested to address the Court. He would submit that the suit was instituted for recovery and suit was taken cognizance of and ex parte evidence was recorded and even the case was fixed for final arguments. Therefore, the trial Court has tried the suit fully and as such it cannot be held that the suit was at preliminary stage. He would further submit that when there is an express jurisdiction conferred under Section 13 of the Court Fees Act, 1870, even under Section 151 of the CPC, inherent power cannot be exercised and the said application was rightly rejected by the trial Court, no interference is warranted and the writ petition deserves to be dismissed.

4. I have heard learned counsel for the petitioner on the question of admission of the writ petition.

5. Concededly and undisputedly, the suit was apparently instituted by the plaintiff seeking recovery of the aforesaid sum jointly and severally from the defendants and it was put to trial though no issue was framed on account of defendants being proceeded ex parte and as such, the case was fixed for final arguments and arguments were heard at some length, as it appears from the impugned order. Since a specific question regarding maintainability of the suit was raised, the matter was adjourned to the next date and on the next date, application for withdrawal of suit with liberty to file afresh was filed. The trial Court, in all fairness, finding that the suit suffers from formal defects allowed the plaintiff to withdraw the suit with liberty to file fresh suit in respect of same cause of action and same subject-matter, but the application for return of court fees has been rejected relying upon the judgment of a Full Bench of the Allahabad High Court in the matter of Munna Lal and another v. Abir Chand, AIR 1958 Allahabad 766.

6. In order to appreciate the point in dispute, it would be appropriate to notice Sections 13, 14 and 15 of the Court Fees Act, 1870, which read as follows :-

"13. Refund of fee paid on memorandum of appeal.- If an appeal or plaint, which has been rejected by the lower Court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received, or if a suit is remanded in appeal, on any of the grounds mentioned in Section 351 of the same Code, for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate, authorizing him to receive back from the Collector the full amount of fee paid on the memorandum of appeal