1. This appln. in revn. is from an order made by the Principal Judge, City Civil Ct., refusing an appln. made by the pltf. for refund of c. fs. levied for the institution of a suit. The learned Principal Judge took the view that the Ct. had no jurisdiction to try the suit & made an order under Order 7, Rule 10, for the return of the plaint to be presented be the proper Ct. & after the order had been made the pltf. applied that he should be refunded the c. fs. which had been paid by him. The learned Principal Judge has taken the view that he had no power under the Court fees Act or under the rules framed by Govt. under Section 11(2), Bombay City Civil Courts Act to order any' refund. But the learned Judge, with respect to him, has failed be consider the inherent powers of the Ct. to do justice under Section 151, Civil P. C.
2. Mr. Dabar who appears for the State does not contest the proposition that the pltf, would be entitled to a refund of the c. fs. But his contention is that the order cannot be made by the City Civil Court but should be made by the Ct. to which the plaint is presented. In this case the proper Gt. where the plaint has to be presented is the H. C. & therefore a situation has arisen which rarely arises in the Districts. In the Districts when a plaint is returned under Order 7, Rule 10, in order that it should be presented to the proper Ct. no question of refund of c. fs. ever arises, because in the other Ct. to which the plaint is ultimately presented the c. fs. payable are the same as in the Ct. which has returned the plaint. But the position is different when a plaint returned by the City Civil Ct. has to be presented to the H. C., because in the H. C. ad valorem c. fs. are not to be paid on the institution of the suit. Therefore, the question that I have to consider is whether the City Civil Ct. has jurisdiction under Section 161 to make an order for refund of c. fs. when it returns a plaint under Order 7, Rule 10.
3. It is urged by Mr. Datar that once the plaint is returned, the Ct, is not seized of the suit & it has no jurisdiction to make any order in the suit. The answer be this argument is two-fold. The first answer is that when the Ct. returns the plaint it has undoubtedly the jurisdiction to make an order with regard to costs, & in this suit the learned Principal Judge has made an order directing the pltf. to pay the costs of the deft. If he has jurisdiction to make an order with regard to costs of the suit, I fail to see why he has no jurisdiction be make an order with regard to the refund of c. fs. The second answer is that the order with regard to the refund of c. fs. is not an order in the suit. The order is not made on any question affecting the merits of the suit. Itis an order which has to be made as a result of the order made by the Ct. for the return of the plaint. It is really in the nature of a consequential order. As the Ct. has refused to take the plaint on file, the pltf. is not liable to pay institution fees, & therefore this is an order which the Ct. can certainly make although it is not seized of the suit & it has no jurisdiction to try the suit.
4. My attention has been drawn by Mr. Datar to a decision m Visweswara, Sarma v. T. N. Nair 85 Mad 567 : do I. C. 20l. In that case a F. B. of the Madras H. C. held that when a Ct., after receiving a plaint & cancelling the stamp affixed thereto, returns the plaint for presentation be the proper Ct., the labber Ct. to which the plaint is represented is bound to give credit to the fee already levied by the former Ct. What the F. B. laid down was the principle that the fees paid in a Ct. which has no jurisdiction are not lost, but the litigant is entitled to credit of those fees. But the question which I am considering did not arise for determination by the P. B. It was never argued, never considered & never decided whether a Ct. which returned the plaint could have made the order for refund of c. fs. & there the question was not with regard to refund but with regard be credit to be given by the Ct. in which the suit was ultimately instituted. Then there is a decision of P. B. of this Ct. in Prabhakarbhat v. Vishwambhar, 8 Bom 313 (F. B.). It was contended in that case that there was no jurisdiction in the Ct. to return a plaint under Order 7, Rule 10, which corresponded to Section 53 of the old Code after the suit had gone on because the Ct. being without jurisdiction could not make any order under Section 53 or Order 7, Rule 10. The Ct. rejected the contention & held that the plaint could be returned at any stage to be presented to the proper Ct. & no additional c. fs. were payable. This decision lays down two propositions, that oven a Ct. without jurisdiction could mike a competent order under Order 7, Rule 10, & that the litigant was not liable to pay any additional c. fs. although the suit had gone on for some time in a Ct. without jurisdiction. These propositions do not support Mr. Dabar's contention.
5. It is then argued that if it was left to the City Civil Ct. bE make an order for refund, the plbf, may never present the plaint to the proper Ct Mr. Datar says that the plbf. may not prosecute the suit or there may be a compromise out of Ct. which may result in no suit being filed. The State is entitled to institution fees in respect of a suit which is filed in a proper Ct. & which the Ct. has jurisdiction to try, & I see no reason why the subject should pay to the State institution fees when he does not wish to prosecute a suit which originally he filed in the wrong Ct. Our own Appellate Side Rules, Rule 143, entitle a litigant to receive back the value of the c. f. stamps cancelled in respect of appeals, memo, of cross-objections or applns. which have been refused bythe Registrar & which have not been represented. In my opinion, the principle underlying Rule 148 should also apply to subordinate Cts. With regard to the question of compromise I think the State ought to encourage compromises among libigants. If Mr. Datar's contentions were to prevail, a pltf, in order to get a refund of his c. fs. must file a suit in the proper Ct. & must resist all temptation to compromise the litigation; otherwise he would fail be get the refund. My attention has not been drawn to any authority which precludes me from taking the view that in the interest of justice an order for refund of c. fs. should be made by the Ct. which returns the plaint under Order 7, Rule 40. There is neither authority nor principle against this view of the law. In my opinion, therefore, the learned Principal Judge had jurisdiction under Section 151 to order a refund of c. fs.
6. I, therefore, set aside the order made by the learned Principal Judge & order that the pltf. should be refunded the c. fs. which he had paid for the institution of the suit. Rule absolute with costs.