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Konathala Sriamulu and ors. Vs. Board of Revenue (C.T.), Hyderabad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberSpl. Appeal Nos. 6 to 51 of 1962
Judge
Reported inAIR1965AP395
ActsAndhra Court-fees and Suits Valuation Act, 1956 - Sections 23(1), 63, 64, 65 and 66; Code of Civil Procedure (CPC), 1908 - Sections 2(2) and 151
AppellantKonathala Sriamulu and ors.
RespondentBoard of Revenue (C.T.), Hyderabad
Appellant AdvocateT. Anantha Babu, ;K. Chalapathi Rao and ;K. Satyanarayanamurthy, Advs.
Respondent AdvocateD.V. Sastry, Govt. Pleader and ;P. Ramachandra Reddy, Adv.
Excerpt:
.....conditions to be satisfied before the section could be invoked is that, the remand must be of a suit or of an appeal for fresh decision. since this is a word of wide significance, we should construe it as extending to proceedings started before sales-tax tribunals as well. venkatarama reddi, ilr 22 mad 256. (7) to a like effect is the decision of this court in narapu reddy v. venkataramanamma, ilr 55 mad 641 :(air 1932 mad 438) and in re chidambaram chettiar, ilr 57 mad 1028 :(air 1934 mad 566) specify the circumstances in which such a power could be exercised and they do not include remand of a proceedings under special enactments like the andhra pradesh general sales tax act, to a tribunal like the board of revenue. the principle underlying these decisions, if we may say so with..........after referred to as the act). that recites (omitting the unnecessary portion) :'64 (1) where a plaint or memorandum of appeal rejected by the lower court is ordered to be received, or where a suit is remanded in appeal for fresh decision by the lower court, the court making the order or remanding the appeal may direct the refund to the appellant of the full amount of fee paid on the memorandum of appeal; and if the remand is on second appeal, also on the memorandum of appeal in the first appellate court, and if the remand is in letters patent appeal, also on the memorandum of second appeal and memorandum of appeal in the first appellate court.'(4) it is seen that the jurisdiction of this court is subject limitations. the first essential conditions to be satisfied before the section.....
Judgment:

Chandra Reddy, C.J.

(1) This matter has been brought before us on an objection raised by the Office that no directions could be given for the refund of Court-fee in these appeals.

(2) It may be recalled that while allowing the appeals brought by certain assessees under section 23 (1) of the Andhra Pradesh General Sales Tax Act, `957 and remanding the cases for fresh disposal according to law, a direction was issued to refund the Court-fee paid on the memoranda of appeal.

(3) The main question that arises for consideration is whether this Court has power to order refund of Court-fee while remanding the tax matter to the Board of Revenue for fresh disposal. In this context, reference has to be made to section 64 of the Andhra Court-fees and Suits Valuation Act (herein after referred to as the Act). That recites (omitting the unnecessary portion) :

'64 (1) where a plaint or memorandum of appeal rejected by the lower Court is ordered to be received, or where a suit is remanded in appeal for fresh decision by the lower Court, the Court making the order or remanding the appeal may direct the refund to the appellant of the full amount of fee paid on the memorandum of appeal; and if the remand is on second appeal, also on the memorandum of appeal in the first appellate Court, and if the remand is in Letters Patent Appeal, also on the memorandum of second appeal and memorandum of appeal in the first appellate Court.'

(4) It is seen that the jurisdiction of this Court is subject limitations. The first essential conditions to be satisfied before the section could be invoked is that, the remand must be of a suit or of an appeal for fresh decision. Shri Anantha Babu, learned counsel for the appellants contends that the word 'suit' is wide enough to include any proceeding in any Court or a Tribunal and there is no warrant for restricting its connotation to proceedings started with a plaint. Since this is a word of wide significance, we should construe it as extending to proceedings started before Sales-tax Tribunals as well. As substantiating this proposition, the learned counsel invited our attention to a judgment of the Bombay High Court in Krishnappa v. Shivappa, ILR 31 Bom 393 where it was observed that according to the Civil Procedure Code, the essentials of a suits are (1) opposing parties, (2) a subject in dispute, (3) a cause of action and (4) a demand of relief. Basing himself on this ruling, the learned counsel maintains that any proceeding which contains the four elements would constitute a suit. We do not think we can assent to this view. The learned Judge were considering the question as to what proceeding would constitute a suit. They were only concerned with as to what the ingredients of a contentions suit should be. That decisions does not throw any light on the question to be answered by us.

(5) The problem that is posed in this matter is easy of solution. There can be little doubt that it is only a proceeding commenced with the presentation of a plaint that would amount to a suit and not each and every proceeding in what ever forum it might be initiated. There is abundant authority for this proposition.

(6) It was inter alia down in Rajagopala Chettiar v. H. R. E. Board, Madras, ILR 57 Mad 271 : (AIR 1934 Mad 103 (2)) by a Full Bench of the Madras High Court that a proceeding which has not commenced with a plaint was not a suit and where there was no suit there can be no decree. In support of the first part of their conclusion, the learned Judges placed reliance on Venkata Chandrappa Nayanivaru v. Venkatarama Reddi, ILR 22 Mad 256.

(7) To a like effect is the decision of this Court in Narapu Reddy v. Reddamma, ILR (1958) Andh Pra 822. The question that fell to be considered there was whether an order of adjudication is a decree that fell within the meaning of the Civil Procedure Code and the answer was in the negative for the reason that it is only a determination of the rights of the parties in a suit that would answer the definition of a decree and that in order to amount to a suit, the proceedings should be started by a plaint and the suit would not take in proceedings started by an application .

(8) This conclusion of ours is reinforced by the several provisions of the Court-fees Act itself. Sections 10 - 12 deal with court-fee payable in suits of various descriptions. Section 14 relates to payment of Court fee on appeals and section 15 to fees payable on petitions or applications. It really the term 'suit' is of such a wide connotation as to include every proceeding, there was no need for the Legislature to enact section 15. This furnishes a clue to the interpretation of the expression 'suit' as used in section 64 of the Act.

(9) Apart from section 64, there is another provision in the act concerning refund of Court-fee and that is Section 63. That section recites ;

'63 (1) Where a plaint or memorandum of appeal is rejected on the ground of delay in its re-presentation or where the fee paid on a plaint or memorandum of appeal is insufficient and the deficit fee is not paid within the time allowed by the court, of the delay in payment of the deficit fee is not condoned and the plaint or memorandum of appeal is consequently rejected, the court may in its discretion direct the refund to the plaintiff or to the appellant , of the fee, either in whole or in part, paid on the plaint or memorandum of appeal which was rejected.

(2) Where a memorandum of appeal is rejected on the ground that it was not presented within the time allowed by law of limitation, one half of the fee shall be refunded.'

(10) In this context, we may refer to the other provisions of the Act which provided for the refund of Court-fee. They are sections 65 and 66. Section 65 reads :

'Where an application for a review of judgment is admitted on the ground of some mistake or error apparent on the face of the record and on rehearing, the Court reverses or modifies its former decision on that ground, it shall direct refund to the applicant of so much of the fee paid on the application as exceeds the fee payable on nay other application to such Court under Article 11 (g) and (u) of Schedule II.'

Section 66 in the following words :

'The fee paid by mistake or inadvertence shall be ordered to be refunded.'

(11) It looks to us that these four sections of the Act exhaust the situations in which the Court-fee. They do not seem to leave any inherent power in the Court apart from what is stated in the four sections. It may be mentioned that in enacting sections 63 and 66, the Legislature adopted the criterion for ordering refund indicated in the Madras decisions referred to above.

(12) Even if it is possible to uphold the contentions of Shri Anantha Babu, learned counsel for the appellants that these provisions of the Act do not touch the inherent powers possessed by this Court prior to the passing of the Act and they were left intact, they do not come to the rescue of the appellants. The decisions cited by Shri Anantha Babu in support of his contention, namely Thammayya Naidu v. Venkataramanamma, ILR 55 Mad 641 : (AIR 1932 Mad 438) and In re Chidambaram Chettiar, ILR 57 Mad 1028 : (AIR 1934 Mad 566) specify the circumstances in which such a power could be exercised and they do not include remand of a proceedings under special enactments like the Andhra Pradesh General Sales Tax Act, to a tribunal like the Board of Revenue.

(13) In ILR 55 Mad 641 : (AIR 1932 Mad 438) the learned Judges said :

'It would be unreasonable and unjust for the High Court not to assist a party to recover excess Court-fee erroneously paid under its own order or under the orders of Courts subordinate to it. Of course, what the High Court really does judicially in such a case is to decide judicially in such a case is to decide judicially what is the proper Court-fee and then issue a certificate to the party that excess Court-fee has been levied.'

(14) That was a case where Court-fee was paid in excess under a bona fide mistake. It may be observed here, this is exactly the type of case that is contemplated by section 66 of the Act.

(15) The power of the High Court to order refund of Court-fee is also stated by the learned Judges of the Madras High Court in ILR 57 Mad 1028 : (AIR 1934 Mad 566) in the following words :

'The Court can order refund (i) where the Court-fees Act applies, (ii) where there is an excess payment by a mistake, or (iii) where on, account of the mistake of a Court, a party has been compelled to pay Court-fees either wholly or in part. Outside these cases the Court has no power to order a refund.'

(16) This statement of law, far from advancing the case of the appellants furnishes an answer to the argument advanced by the learned counsel. It is an authority for the proposition that apart from the three instances mentioned there in, it is not competent for the High Court to order a refund.

(17) That this power does not extend to cases other than those indicated in the above cases, could be gathered from another decision of a Division Bench of the Madras High Court in In re Kappini Gowder, AIR 1938 Mad 67. The problem to be solved by the learned Judges in that case was whether the Court can order refund of Court-fee paid on a memorandum of appeal in a case where an appeal was withdrawn as having been settled out of Court. The learned Judges declined to make an order for refund of Court-fee remarking as follows :

'The Courts have gone to the extent of holding that they can order a refund under their inherent powers, where an excess Court fee has been paid (i) by mistake of party and (ii) in obedience to a wrong order of Court. The principle underlying these decisions, if we may say so with respect, is both good law and sound sense. But to go further and hold that a Court-fee, properly paid, can be refunded, would be to render nugatory the express provisions of the court-fees Act, for, what differences does it make in principle between permitting a document to be filed originally without a Court-fee and refunding the Court-fee already paid in respect of it It is elementary that no expressly prohibited by statue.'

(18) An unreported decision of the Madras High Court by Leach, C. J. and Happell, J., in C. M. P. Nos. 4439 to 4442 of 1941 contains the same principle.

(19) The decision rendered in Nagarathnam, In re : AIR1950Mad629 is in consonance with the rules set out above.

(20) A division Bench of this Court in Chandaji Khubaji and Co., Guntur v. State of Andhra, 1956 Andh LT 598 : (AIR 1957 Andh Pra 255) after reviewing the whole case-law on this point held that the inherent power to make an order for refund of Court-fee must be confined to the cases authorised by precedent and cannot arbitrarily be extended.

(21) That is so far as the inherent powers of this Court are concerned.

(22) Now coming back to the applicability of S. 64 of the Act, a recent in Sri Ramakrishna Commercial Society Ltd. v. State of A. P., : AIR1961AP86 held that section 64 of the Andhra Court-fees and Suits Valuation Act cannot govern tax revision cases and there was no specific provision in the Sales Tax Act for refund of Court-fees in revision cases, while such a power is specifically conferred by a rule made under the Sales Tax Act with regard to appeals disposed of by the Tribunal. Shri Anantha Babu seeks to distinguish this on the ground that it dealt only with tax revision cases and not with appeals under section 23 of the Andhra Pradesh General Sales Tax Act. We do not think it is susceptible of that distinction. There is no difference in principle between a tax revision case and a tax appeal in this behalf. On the language of S. 64, there is not scope for extending the refund to cases of remand to the Board of Revenue of proceedings under the Sales Tax Act.

(23) There remains the argument of the learned counsel for the appellants that once an order is made by this Court, it cannot be recalled. We do not think this merits serious consideration. Apart from the authority furnished by the case of : AIR1961AP86 in which the very learned counsel appeared for the petitioners and in which in similar circumstances the order for refund was recalled, there is an authoritative pronouncement of the Supreme Court in B. V. Patankar v. C. G. Sastry, : [1961]1SCR591 which laid down that a court in exercise of its inherent jurisdiction derived from S. 151, C. P. C. could set aside an order made contrary to the terms of the Rent Control Act. In support of their conclusion, their Lordships referred to a judgment of the Privy Council in J. Marret v. Mahomed Khaleel Shirazi and Sons, AIR 1930 PC 86 in which it was laid down that an order made by the executing Court contrary to the terms of the decree directing payment of a certain fund to the decree - holder, could be set aside in exercise of the inherent powers this pronouncement affords a close analogy to the instant case. The request for refund of Court fee was complied with contrary to the terms of the relevant provisions of the Act and to the judicial precedents.

(24) In these Corporation , we have no option but to vacate our direction for refund of the Court-fee and it is ordered accordingly.

(25) Order accordingly.


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