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1968 Supreme(Del) 23
High Court Of Delhi
AYA SINGH - Appellant
Versus
MUNSHI RAM - Respondent
First Appeal Order 15 of 1968
Decided On : 02/14/1968
K.C.Mohindra, Prakash Narain
The Court has inherent power to order refund of excess court fee paid under a bona fide but mistaken impression, if the cause of justice so demands.
Headnote:
COURT FEES ACT - SECTION 13 - REFUND OF EXCESS COURT FEES - INHERENT POWER OF COURT - EXCESS COURT FEES PAID UNDER BONA FIDE BUT MISTAKEN IMPRESSION - REFUND DIRECTED.
Fact of the Case:
The appellant, AYA Singh, filed an appeal in the High Court from an order of the Additional District Judge remanding the case back to the Court of First instance for re-decision. By mistake, the appellant paid excess court fee on the memorandum of appeal, treating it as a regular second appeal from a decree. The appellant filed an application under section 13 of the Court Fees Act read with Section 151, Code of Civil Procedure, praying for a refund certificate in regard to the excess court-fee paid.
Finding of the Court:
The High Court held that the Court has inherent power to order refund of excess court fee paid either under compulsion or under a bona fide, but erroneous impression, if the cause of justice so demands. The Court found that in the present case, the appellant's learned counsel erroneously thought that the remand order was equivalent to a decree and on this impression paid court fee very much in excess of the amount prescribed, treating the appeal to be from a decree. The Court was satisfied that in this case, this impression was due to a bona fide mistake.
Issues: Whether the Court has inherent power to order refund of excess court fee paid under a bona fide but mistaken impression.
Ratio Decidendi: The Court relied on the following principles in reaching its decision: * The Court Fees Act has no preamble, but it has obviously been enacted to secure revenue for the benefit of the State. * The rate at which court-fee is to be paid is determined by the Court Fees Act and it is well recognised that unless the liability to pay court-fees is clearly supportable on the plain statutory language a suitor is not obliged to pay any court-fee. * It is on this basis perhaps that inherent power of the Court is recognised to direct refund of excess court tee paid either under compulsion or under a bona fide. but erroneous impression, if the cause of justice so demands. * It is true that the Court Fees Act has made certain provisions for refund and it may be argued that the legislative intent should be held to exclude refund in other cases, but the formidable array of authorities upholding the inherent power of the Court to direct refund ex debito justituae impells us also to uphold the inherent power.
Final Decision: The High Court directed that a certificate should issue for refund of the excess of court-fee paid, as prayed in the application.
( 1 ) AYA Singh, defendant in the trial Court, presented an appeal in this Court from an order of the learned Additional District Judge dated 18th September, 1967 allowing the appeal of Manshi Ram plaintitff and after setting aside the Judgment and decree of the trial Court, remanding the case back to the Court of First instance for re-decision. By mistake an appeal was p"esented in this Court as a regular second appeal from a decree on which court fee of Rs. 686. 80 Paise was affixed. The office note shows that an enquiry was made from the counsel for the appellant as to how a regular second appeal lay against an order of remand. To this, the counsel replied that the appeal may be treated as an appeal from older and may accordingly be registered as first appeal from order. The office, without realising that it was, as a matter of fact, a second appeal, for it was the second appellate Jurisdiction of Ibis Court which was being invoked, registered the appeal as an F. A. 0. instead of an S A. O. The appeal was on this basis marked before a Division Bench for preliminary taring. The learned counsel for the appellant, when re-presenting the appeal with a request that the same may be treated and registered as an F. A 0, also presented an application under section 13 of the Court Fees Act read with Section 151, Code of Civil Procedure, playing for a refund certificate in regard to the court-fee paid in excess on the ground that the excess court fee on the memorandum of appeal was affixed under a mistaken and bona fide impression. It was stated that on a memorandum of appeal from an order,a court-fee of only Rs. 5. 25 was payable, whereas in the case in hand, court fee of Rs. 686. 80 was paid under a bona fide mistake.
( 2 ) WHEN we heard the appeal at motion stage on 1st February, 1968, we felt that there was no merit in the appeal, but left the appeal pending and issued notice to the Central Government counsel in Civil Miscellaneous No. 45 J of 1968 for 8th February. 1968. On that date, we heard arguments for both sides and reserved orders. The learned counsel for the appelant-petitioner has placed his reliance on a Full Bench decision of the Punjab High Court in Jawahar Singh Sobha Singh v. Union of India, in which Bhandan C. J. and Tek Chand J. have written separate lengthy Judgments on the scope of the inherent power of a Court to remit or refund court-fee In the opinion of the Full Bench, the inherent power of a Couit to remit or refund court-fee is confined only to fees which have been illegally or erroneously assessed or collected and does not extend to lees which have been paid or collected in accordance with the provisions of the Court-Fees Act. Both sides have placed reliance on this decision. Shri Mohindra has, however, also relied on Sohan Singh v. The Oriental Bank of Commerce, and Mohadeo Ganesh v. Keshav Khandera. In Sohan Singh s case, a Division Bench of the Punjab High Court construed the order of the High Court to be a remand order under order 41, Rule 23, Civil Procedure Code and allowed refund of court fee. It also added that even if the case did not fall within section 13, Court Fees Act, the case had to be remanded for want of proper trial and that the appellant should have the certificate for obtaining refund of court-fee. The bench observed that practically every couit except the Bombay High Court has recognised the inherent power of the Court to order refund of court-fee, adding that refund can be order refund of court-fee, adding that refund can be ordered ex debito justititua In the case of Mahadeo Ganesh, the applicant there was held entitled to the relund of court-lee paid by him under an erromeous order of the Court and it was observed that even in cases not covered by sections 13, 14 and 15 of the Court Fees Act, the Court can, under section 151, Civil Procedure Code. order refund of court fee paid in excess either by mistake, inadvertance or under some wrong order of
