Court has inherent power to order refund of Court-fee.

This is a petition under section 115 of the Code of Civil Procedure to revise an order of the Subordinate Judge of Madurai in an application made under section 151 of the Code for a direction for refund of the Court-fee paid on the plaint on the ground that by reason of the Madras Buildings (Lease and Rent Control) Act, 1960, as amended by Madras Act XI of 1964, which came into force on 10th June, 1964, the suit stood abated and all the rights which had accrued to the plaintiffs prior to the amendment became unenforceable. The suit is stated to be for ejectment of the defendant-tenant. The Court below was of the view that inasmuch as there was no provision in the Madras Court-fees and Suits Valuation Act, 1955, no refund of the Court-fee could be ordered. It also relied on Tarachand v. State1, where the view was taken that if in the Act provision was made for refund in particular cases, but not in the other cases, the inherent power under section 151 of the Code could not be invoked and the Act should be taken as exhaustive.

This Court also took a like view in Nagaratnam, In re.2 But there, PanchapakesaAyyar, J., directed issue of a certificate in exercise of the inherent powers of the Court under section 151 of the Code of Civil Procedure on the view that the Courtfees Act in the matter of refund was not exhaustive. The Court-fees Act, as it existed then, provided by sections 13, 14 and 15 for refund or Court-fee in certain specified cases. That was a case, which was not covered by any of those sections. There, the petitioner filed a Second Appeal, but then the dispute was compromised, with the result the Second Appeal became unnecessary. Thereafter, refund of the Court-fee paid on the memorandum of Second Appeal was applied for. This Court held:

There was no provision of the Court-fees Act on which petitioner could rely for a refund of the Court-fee paid on a memorandum filed but withdrawn as there was no mistake of Court in making the petitioner pay the Court-fee, nor was there any excess Court-fee paid by mistake. The remedy, if any, available to the Petitioner was not to apply for a refund certificate but to apply to Government ex gratia and misercordia domini regis for a refund less the one-anna-in the rupee deductions, as for spoilt stamp papers, if they are pleased to grant it."

In Thammaya Naidu v. Venkataramanamma1 , this Court took the view that it had power to allow refund of Court-fee stamps and its power was not confined to sections 13, 14 and 15 of the Court-fees Act. In a latter case, Chidambaram Chettiar, In re2, it was however, held that the Court could only order refund of Court-fees under section 151, where there an was excess payment made by mistake or where on account of the mistake of the Court a party had been compelled to pay excess Court-fees. But it was pointed out by the Division Bench in that case that outside these cases the Court had no Dower to order refund under section 151 of the Code.

It follows, that this Court has a limited power to order refund, in exercise of its inherent power under section 151 of the Code of Civil Procedure, but it does not extend to cases other than the instance mentioned in Chindambaram Chettiar In re2, Apparently, this decision proceeded on the basis that if a party was compelled because the Court took a particular view, to pay Court-fee, it had an inherent power to set its own mistake right. It was, perhaps, on this ground the Court considered that the inherent power of the Court under section 151 of the Code of Civil Procedure would extend to refund of Court-fees in the particular cases of mistake or over sight by Court, which was responsible for the excess Court-fee paid by the litigant.

Having said all that, Panchapakesa Ayyar, J., also, as already mentioned, pointed out that the person who has paid excess Court-fee or who wants refund of Court-fee would not be without a remedy merely because the Court-fees Act does not cover the case. I think so too. The party