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Premlal and Ors. Vs. Smt. Basanti Bai Kesharwani and State of Chhattisgarh

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  • Decided on : Nov-10-2008

LegalCrystal Citation : legalcrystal.com/496696

Court : Chhattisgarh

Reported in : 2009(1)MPHT5(CG)

Judge : Dhirendra Mishra and; D.R. Deshmukh, JJ.

Subject : Civil

Decided On : Nov-10-2008

Appellant : Premlal and Ors.

Respondent : Smt. Basanti Bai Kesharwani and State of Chhattisgarh

Cases Referred :
Ramlal v. State of M.P.

Excerpt:
Civil - Withdrawal of Appeal - Section 6 of the Specific Relief Act, 1963 and Section 96 of the Code of Civil Procedure, 1908(CPC) - Respondent No. 1 filed suit under Section 6 of Act for restoration of possession of suit property - Trial court decreed suit of respondent no.1 - Appellants file ..... However, in exceptional case where a memorandum of appeal was filed, numbered and registered but was not pressed for arguments at all the Court did not entertain the appeal nor passed any order and only prayer was for refund of Court Fees, refund of Court Fees may be granted on equitable consideration and for doing proper justice.

Judgment:ORDER

Dhirendra Mishra, J.

1. By this order, the appellants' applications i.e. I.A. No. 5, application for withdrawal of the appeal with liberty to prefer civil revision against the impugned judgment & decree; I.A. No. 6, application for refund of court-fee affixed in the first appeal & I.A. No. 7, application for permission to return certified copy of the impugned judgment & decree, are being disposed of.

2. This first appeal is directed against the judgment and decree dated 11.5.2007 passed in Civil Suit No. 38-A/2007 whereby the learned 3rd Additional District Judge, Bilaspur has decreed the suit of the plaintiff/respondent No. 1 herein with cost and directed the defendants/appellants herein to restore vacant possession of the suit land/ house & hotel to the plaintiff within a period of one month failing which the plaintiff would be entitled for damages @ Rs. 2,000/- per month.



3. The respondent No. 1/plaintiff filed the above suit under Section 6 of the Specific Relief Act, 1963 (for short 'Act of 1963') for restoration of possession with specific averments that she was dispossessed from the suit property without following due process of law on 14.5.1997 and the trial court by impugned judgment and decree, decreed the suit of the plaintiff, as described above. The appellants have preferred this regular first appeal against the said judgment and decree under Section 96 of the Code of Civil Procedure, 1908 (for short `CPC') and have also affixed the court fee of Rs. 89,800/- in the memo of appeal. This Court vide order dated 30.8.2007 stayed the effect and operation of the impugned judgment & decree on appellants' depositing money part of the decree with certain conditions. The application for vacating stay by the respondent No. 1/plaintiff was also rejected on 5.2.2008 and the matter was fixed for final hearing. Thereafter, respondent No. 1 vide her application dated 10.3.2008 (I.A. No. 2) prayed for dismissal of the appeal itself on the ground that as per provisions of Section 6(3) of the Act of 1963 no appeal lies against the order or decree passed in a suit instituted under Section 6 of the Act of 1963. Confronted with the above preliminary objection, the appellants by the aforesaid applications have prayed for withdrawal of the appeal with liberty to file civil revision and also prayed for refund of court-fee affixed by the appellants in the memo of appeal.

4. The short question for deciding the above applications is whether the appellants can be permitted to withdraw first appeal with liberty to file civil revision against the impugned judgment and decree and whether while permitting the appellants to withdraw the appeal, the court-fee affixed by them along with memo of appeal can also be refunded.

5. So far as the question of permission to withdraw the appeal with liberty to file civil revision is concerned, taking into consideration the provisions of Section 6(3) of the Act of 1963, the instant appeal is not maintainable and in these circumstances, there is no impediment in permitting the appellants to withdraw this appeal with liberty to avail remedies available under the law including filing of civil revision against the impugned judgment and decree in accordance with law.

6. The only question that remains to be decided is whether the Appellate Court is empowered to grant to the appellants a certificate authorizing them to receive back the full amount of court-fee paid by them on the memorandum of appeal.



7. Considering the different views taken by the various High Courts in the matter, the Bar was requested to address on this legal issue and accordingly, Mr. Manindra Shrivastava, Senior Advocate, Mr. Sanjay S Agarwal & Mr. Sanjay K Agarwal, Advocates addressed the Court at length and also submitted written submissions.

8. Mr. Ratnesh Agarwal & Mr. Wankhede, Advocates for the appellants vehemently contended that the appellants instead of preferring civil revision against the impugned judgment and decree inadvertently filed the instant first appeal, which is admittedly not maintainable in view of Sub-section (3) of Section 6 of the Act of 1963. The appellants have affixed huge court fee of Rs. 89,800/- along with the memo of appeal. Though the present case is not covered by Section 13, 14 & 15 of the Court Fees Act, however, the Court can invoke its inherent powers under Section 151 of the CPC for refunding the court fee appended with the memo of appeal, which has been filed inadvertently by the appellants.

9. Mr. Manindra Shrivastava, Senior Advocate & Mr. Sanjay S Agarwal, Advocate traversing various judgments delivered by the different High Court on this legal issue submitting following propositions;

a) Even in cases not covered by Section 13, 14 & 15 of the Court Fees Act, the Court can invoke its inherent power under Section 151 of the Code of Civil Procedure to refund the Court Fee paid in excess either by mistake, inadvertence or oversight. However, the inherent power of a Court to refund Court Fee is confined only to fees which have been illegally or erroneously assessed or collected and does not extend to fees which have been paid in accordance with the provisions of the Courts Fees Act.



b) Where the appeal is withdrawn/ not pressed as having been rendered infructuous, appellant is not entitled to refund of Court Fees paid on the memorandum of appeal.

c) Where on appeal having been filed and jurisdiction of the Appellate Court having been invoked and further Appellate Court having entertained the appeal and/or passed any order/interim order coming to the aid of the appellant, refund of Court Fee is not permissible merely because at the stage of argument confronted with objection regarding maintainability of the appeal either it is withdrawn or a prayer for conversion of appeal into revision is made as the Court Fee paid on it served its purpose. However, in exceptional case where a memorandum of appeal was filed, numbered and registered but was not pressed for arguments at all the Court did not entertain the appeal nor passed any order and only prayer was for refund of Court Fees, refund of Court Fees may be granted on equitable consideration and for doing proper justice.

10. Mr. Sanjay K. Agarwal, Advocate in his oral submissions as also in the written submissions contended that refund of court-fees may be ordered only under the contingencies enumerated in Section 13, 14 & 15 of the Court Fees Act and none of the contingences enumerated in the above Sections exists in the present case. It is settled law that taxing statute has to be construed strictly. Where the court-fee is paid as per provisions of the Court Fees Act, the same cannot be directed to be refunded under inherent powers of the Court as the court fee, which has been illegally & erroneously assessed or collected can only be ordered to be refunded. It was further submitted that where the appellant withdraws his appeal, the appellate court in the exercise of inherent powers cannot order refund of court fees.

11. Similar arguments were also advanced by Mr. N.K. Agarwal, Deputy Advocate General for respondent No. 2-State.

12. We have heard learned Counsel for the parties at length.

13. In the matter of Arjuna Govinda v. Amrita Keshiba and Ors. the Division Bench of the Nagpur High Court held that 'where because of the objection raised by the Stamp Reporter the litigant pays additional court fee, which is not leviable, the Court can act under its inherent powers to order refund'.

14. In the matter of Govind Ram v. State and Ors. the Division Bench of the Allahabad High Court while dealing with the refund of court fees affixed in the memo of second appeal by the appellant has held that 'where the appellant himself filed second appeal and paid the appropriate amount of court fee on it; he was not invited, much more less was he compelled by anyone to do so. The appeal was converted into revision at a later stage when in the course of arguments it was contended that it was not maintainable. A party which files a suit, appeal or application bearing court-fee is not entitled to refund of it when the suit, appeal or application is dismissed on the ground of want of jurisdiction'. It was further held that 'merely because the court allowed him to convert the second appeal into revision, he should not have filed second appeal when it did not lie. If an appeal was withdrawn before any action could be taken on it, it might be contended that the court-fee paid on it was not used at all, but the same reasoning cannot be adopted when the appeal comes up for argument and an objection about its maintainability is heard. There is no question of applying the doctrine of unjust enrichment because the State has spent some time and labour in disposing of the appeal'.

15. In the matter of Munnalal and Anr. v. Abir Chand the appeal was preferred against the conditional money decree. The suit stood dismissed as a result of default in fulfilling the conditions, thus, the appeal filed by the defendants/appellants became infructuous. The appellate court permitted to withdraw the appeal and his application for refund of court fee was referred to the Full Bench for deciding the question 'whether this Court can in the exercise of its inherent powers order refund of court-fee paid in respect of an appeal which has been withdrawn before admission on account of having become infructuous-

Referring to catena of its earlier judgments in detail, the Full Bench of Allahabad High Court rejected the application for refund of court fee with a finding that in India, the levy of court-fee is sanctioned by Statute. It has to be paid as a condition precedent for seeking aid of the Court. The amount to be paid is prescribed by law. Until it is paid, the litigant cannot be heard. Neither the levy nor the amount to be paid depends on the result of the proceedings, not even on whether the proceedings are considered on merits or not. If therefore the proper court-fee has been paid as required by law there can be no question of its being refunded simply because for some reason or the other it becomes unnecessary to consider the proceedings on merits though the court has inherent powers to do justice and to prevent an abuse of process of the Court. It cannot, however, in the exercise of this power circumvent the provision of law and either relieve the litigant from liability to pay court-fee or reduce the liability. Its duty on the other hand is to enforce the law and to see that it is followed.

16. The Full Bench of High Court of Punjab in the matter of Jawahar Singh Sobha Singh v. Union of India and Ors. has also expressed similar view that the inherent powers to remit or refund the court-fee is confined only to fees which have been illegally or erroneously assessed or collected, and does not extend to fees which have been paid or collected in accordance with the provisions of the Court- fees Act.

17. In the matter of Sarmanlal Yadav v. Jabalpur Town Improvement Trust, Jabalpur the Division Bench of M.P. High Court has held that in cases not covered by Section 13, 14, & 15, Court Fees Act, the Court can under Section 151, Civil Procedure Code order refund of court-fees paid in excess either by mistake, inadvertence or oversight.

18. In the matter of The Official Receiver, Coimbatore v. S.A. Ramaswami Gounder and Ors. the Full Bench of Madras High Court while considering the scope of exercise of inherent power under Section 151 of CPC in the matters of refund of court-fee has held that the powers under Section 151 of the CPC can be invoked by the Court for granting refund of court-fee only in cases where excess court fee has been paid under orders of Court which orders are subsequently reversed or set aside, for in such cases the court is bound to rectify its own mistake in calling upon the party to pay the court-fee which he is not bound to pay under the law. The power under Section 151 of CPC is a judicial power and not an administrative or ministerial power. The issuance of a certificate that the court-fee was affixed but that it was not utilized as the proceeding was withdrawn cannot, in any sense, be said to constitute the exercise of judicial power.

19. The Division Bench of M.P. High Court in the matter of Kiran Electricals, Indore v. State Bank of Indore and Anr. has also held that the inherent powers of the court to refund the court-fee is confined only to fees which has been illegally or erroneously assessed or collected and does not extend to fees which has been paid in accordance with the provisions of the Court-fees Act. Hence in a case of remission under Order 41 Rule 23A of the CPC, the court fee paid on the memorandum of appeal cannot be refunded even in exercise of the inherent powers of the Court under Section 151.

In the matter of Rajee Enterprises v. State Bank of India the Division Bench of M.P. High Court has held that refund of court-fee can be ordered only under provisions of Section 13 of the Court Fees Act, 1870.

In the latest judgment in the matter of Ramlal v. State of M.P. the Division Bench of M.P. High Court has further reiterated that the principles with regard to refund of court-fee is that when there is no legal obligation to pay the court-fees the Court orders, in substance, the law to be carried out, and not to increase the liability upon the litigant. But the principle cannot be extended in support of a litigant who has paid court-fees for which, in law, he was liable, but who, because of certain circumstances feels that equitable considerations require that he should not be asked to pay the Court-fees.

20. We are in respectful agreement with the law laid down in the Full Bench decisions of Allahabad, Punjab & Madras High Courts that where proper court-fee has been paid, as required under the law, the same cannot be ordered to be refunded on the ground that the proceeding has been subsequently withdrawn by the party. The inherent power to remit or refund the court-fee is confined only to fees which has been illegally or erroneously assessed or collected.

21. In the instant case, as already observed, the appellants preferred this first appeal under Section 96 of the CPC and appended requisite court fee with the memorandum of appeal. The appellants were heard on their application for staying the execution of the impugned judgment and decree and stay order was passed in their favour. However, when the respondent No. 1/plaintiff prayed for dismissal of the appeal on the ground that the same is not maintainable in view of Sub-section (3) of Section 6 of the Act of 1963, the appellants have filed the above three applications for permission to withdraw the appeal with liberty to file civil revision, refund of court fees and return of certified copy of the impugned judgment & decree. If the order of refund is passed in favour of the appellants under the inherent powers, the same shall amount to indirectly exempt the appellants from the obligation imposed upon them by the Statute towards payment of Court-fees. Therefore, in our considered opinion the jurisdiction of the Court in ordering refund of court fee emanates directly from the Court Fees Act, 1870, if such powers have not been conferred bylaw, it cannot be exercised except in rare circumstances such as where the court fee has been assessed or collected illegally or erroneously.

22. For the aforesaid reasons, application (I.A. No. 5) for withdrawal of this appeal is allowed, the appellants are permitted to withdraw this appeal with liberty to avail remedies available under the law including filing of civil revision against the impugned judgment & decree and accordingly, the appeal is dismissed as withdrawn. It is further directed that on appellants' furnishing authenticated true copy of the impugned judgment and decree, the certified copy of the same annexed with the memo of appeal be returned to the appellant. However, the prayer of the appellants made in I.A. No. 6 for refund of court fee is rejected.

23. Before parting with the matter we record our appreciation for sincere and valuable assistance rendered by Mr. Manindra Shrivastava, Senior Advocate, Mr. Sanjay S Agarwal & Mr. Sanjay K Agarwal, Advocates as Amicus Curiae.

24. No order as to costs.

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