What amounts to mistake or inadvertence.

This revision petition is directed against the order dated 26th October 1966, passed by the Fourth Assistant Judge, City Civil Court, Madras in I A No.5107 of 1966. The application before the Fourth Assistant Judge, City Civil Court, was filed under section 70 of the Madras Court-fees and Suits Valuation Act, 1955, for refund of the Court-fees under the following circumstances. The petitioner herein filed O.S. No. 4105 of 1965 for recovering a sum of Rs. 3,500 from the defendant as dividend due to him and paid a Court-fee of Rs. 263 in respect of the said claim. On the contention of the defendant that the suit was not maintainable, as the petitioner had already filed a comprehensive suit, O.S. No. 301 of 1964 including the claim for Rs. 3,500 the petitioner made an endorsement on the plaint to the effect that the suit O.S. No. 4105 of 1965 had been filed by mistake or inadvertence, that he may therefore be permitted to withdraw the suit without prejudice to his contentions in the earlier suit, O.S. No. 301 of 1964 and that The Court-fee paid by mistake or inadvertence may be ordered to be refunded.

The Fourth Assistant Judge had dismissed the application on the ground 1hat payment of the Court-fee in the suit was not by any mistake or by any inadvertence and that the mistake or inadvertence was with reference only to the filing of the suit in question. Hence the revision.

In Chidambaram Chettiar, In re1, a Division Bench of this Court had,while dealing with a case under the old Court-fees Act (VII of 1870) observed that Courts can order refund only in three cases-(1) where the Court-fees Act applied, (2) where there is an excess payment by mistake and (3) where on account of a mistake of Court a party has been compelled to pay the Court-fees either wholly or in part ; and that outside these cases the Courts have no authority to order a refund. The refund of Court-fee on account of excess payment by mistake on the part of a party or a mistake of the Court was ordered by Courts in exercise of their inherent powers.

Under the present Madras Court-fees and Suits Valuation Act (XIV of 1955), however, section 70 had been specifically enacted for dealing with cases of refund of fee paid by mistake or inadvertence of a party to the suit. Section 70 of the Act provides that the Court-fee paid by mistake or inadvertence shall be ordered to be refunded.

I shall now refer to some of the decisions relating to mistake under the old and the new Madras Court-fees Act. In Thimmayya Naidu v. Venkataramanamma2, this Court upheld the plea of bona fide mistake and purporting to act under its inherent powers ordered the issue of a certificate recommending refund in a case where a party in an appeal to the High Court under the Land Acquisition Act paid in the first instance ad valorem Court-fee on the amount of the award, when a lesser Court-fee was payable, if the relief was treated as one for a mere declaration. This Court upheld the plea that he had paid excess Court-fee erroneously.

In Chidambaram Chettiar, In re1, already cited, this Court refused the request for refund in a case where the appeal was dismissed as withdrawn. The learned Judges disapproved of the decision of the Calcutta High Court in Galstaun v. Raja Janakinath Roy3, where refund was ordered in a case where the appeal which was barred by limitation was filed late because of mistaken legal advice.

In Ramakrishnayya v. Seshamma4, this Court, while dealing with a case under the old Act VII of 1870, rejected the claim for refund in the following circumstances. The reversioner filed a suit against the widow and other alienees challenging the genuineness of a will left by the deceased, conferring absolute title on the widow and the alienees. The suit was one for declaration, but subsequently he obtained a surrender from the widow, converted the suit into one for possession and asked for refund of Court-fees in respect of the relief relating to the declaration of the will, claiming th