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Tej Bahadur Vs. Pearelal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 304 of 1955
Judge
Reported inAIR1957All734
ActsAllahabad High Court Rules - Rule 5; Uttar Pradesh Court-fees Act, 1870 - Sections 13, 14, 15 and 30A; Code of Civil Procedure (CPC) , 1908 - Sections 151
AppellantTej Bahadur
RespondentPearelal and ors.
Appellant AdvocateJanardan Swarup Gupta, Adv.
Respondent AdvocateStanding Counsel
DispositionAppeal dismissed
Excerpt:
.....appeal can be successful unless it was established that the discretion was exercised arbitrarily and against the well established..........1953' praying for refund of the excess amount of court-fee. the application was dismissed by our learned brother who was not satisfied that any case had been made out for refund. this special appeal has been filed under chapter viii, rule 5 of rules of court.3. under chap. viii, rule 5 an appeal lies from a judgment which is not an order made in the exercise of revisional jurisdiction of one judge. the first question that arises is whether the order of our learned brother amounted to a judgment and the next question would be if it was not an order made in the exercise of revisional jurisdiction. there is no definition of 'judgment' in the rules but the word has teen interpreted in several decisions. in r. wall v. j. e. howard ilr 17 all 438 (a) burkitt j., at page 442 observed as.....
Judgment:

Desai, J.

1. This is an appeal from an order of our brother Sri Narain Salmi refusing to issue a certificate to the appellant for the refund of court-fee.

2. The appellant filed a second appeal in this Court and paid ad valorem court-fee amounting to Rs. 142/8/- on it; that was the proper amount of court-fee payable on the memo of appeal. No second appeal lay and the appeal would have been dismissed but for the request of the appellant that it might be treated as an application in revision under Section c C. P. C., which request was granted, on an application for revision less court-fee was payable than had been paid by the appellant; consequently he made an application purporting to be 'an application under Section 115, C. P. C., in Civil Revision No. 1140, of 1953' praying for refund of the excess amount of court-fee. The application was dismissed by our learned brother who was not satisfied that any case had been made out for refund. This special appeal has been filed under Chapter VIII, Rule 5 of Rules of Court.

3. Under Chap. VIII, Rule 5 an appeal lies from a judgment which is not an order made in the exercise of revisional jurisdiction of one Judge. The first question that arises is whether the order of our learned brother amounted to a judgment and the next question would be if it was not an order made in the exercise of revisional jurisdiction. There is no definition of 'judgment' in the Rules but the word has teen interpreted in several decisions. In R. Wall v. J. E. Howard ILR 17 All 438 (A) Burkitt J., at page 442 observed as follows:

'Now the order under appeal here certainly is not a decree nor appealable as such. It is an order by which the learned judge in the exercise of his judicial discretion refused to grant to the appellants an indulgence which they could not claim as a matter of right. It did not decide any question at issue in the case nor the rights of any of the parties nor did it lead up to or originate any order or decree. The order was complete in itself and did not require anything further to be done.' At page 445 he observed: 'I take it that the rule to be deduced from the above cases is that where a Court is invested with jurisdiction to do or to refuse to do a certain act the order passed in the exercise of its discretion in that matter is not a judgment or order within the meaning of Section 19 of the Judicature Act.'

According to these observations the order of our learned brother did not amount to a judgment. In the first place he in the exercise of his discretion refused to grant to the appellant a certificate. The appellant was not entitled to it as a matter of right and our learned brother did not decide any question of his right. The question whether he was entitled to a certificate did not arise in the revision application of which he was seized. By the order he did not decide any right of either party involved in the revision application. It was an interlocutory order and nothing more and certainly not a judgment.

In Sadiq Ali v. Anwar Ali AIR 1923 All 44 (B) a Bench of this Court accepted the test laid down in T. B. Tuljaram Row v. M. K. R. V. Alagappa Chattiar ILR 35 Mad 1 (FB) (C) in the following words:

'The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect whatever its form may be and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned or if its effect if it is not compiled with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause.'

4. According to this test the order of our learned brother did not amount to a judgment. It did not put an end to the revision proceeding pending before our learned brother; it is still pending. In Sital Din v. Anant Ram : AIR1933All262 a final decision effectually disposing of an appeal was held to amount to a judgment in the appeal, but the order under consideration before us is a different order. An appeal may lie under Clause 10 of the Letters Patent from a High Court's order of remand, but it does not follow that an appeal would lie from its order refusing to issue a certificate for refund of Court-fee.

An order of transfer of a suit under Clause 13 of the Letters Patent was held to be not a judgment within the meaning of Clause 15 in Asrumati Debi v. Rupendra Deb : [1953]4SCR1159 . B. K. Mukherjea J. stated at page 200:

'The judgment must be the final pronouncement which puts an end to the proceeding so far as the Court dealing with it is concerned. It certainly involves the determination of some right or liability. If its effect is to terminate the suit or proceeding, the decision would be a 'judgment' but not otherwise.'

The order under consideration also does not affect the merits of the controversy between the parties in the revision because it has not terminated or disposed of it on any ground. Lastly I refer to Nanak Chand v. State of Uttar Pradesh : AIR1955All165 in which an order dismissing a writ petition on the ground of availability of an alternative remedy was held to be a judgment; but that was because it decided the right of the petitioners to restrain the other party from dispossessing them and terminated the proceedings of the writ petition leaving no action to be taken by the Court on it.

5. The order was passed by our learned brother in the exercise of his revisional jurisdiction it was admittedly passed on ah application presented to him in the course of his exercise of revisional jurisdiction and not on an application made in some other matter. The application could not have been made to our learned brother except in the exercise of his revisional jurisdiction; had it been made as an independent application i.e., not in the revision case pending before him it would have been made to the application Judge. Even if the order of our learned brother amounted to a judgment, no special appeal would lie.

6. Coming to the merits I find that the appeal is devoid of any force. The Court Pees Act provides for refund of the court-fee paid in certain circumstances, vide Section 13, 14 and 15. Actually these provisions provide for the granting of a certificate authorizing a party to receive back from the Collector the amount of court-fee paid by him. A party pays court-fee by purchasing court-fee stamps of the appropriate amount and affixing them on the document that he intends to present before a Court.

In certain circumstances mentioned in Section 13, 14 and 15 he is entitled to a refund from the Collector on being granted a certificate to that effect by the Court. It would be no use returning to him the surplus court-fee stamps, because he cannot sell them back and recover their price and cannot use them for any purpose. Therefore, it is provided in Section 30-A that

'Where refund is permitted on the strength of a certificate granted by a Court, the Collector may, on the application of the holder of the same and after satisfying himself about the genuineness of the certificate. . . give in lieu thereof the same amount or value in money......'

The jurisdiction or the duty of a Collector to pay the money exists only where refund is permitted on the strength of a certificate granted by a Court i.e., where there exists a statutory provision allowing refund on the strength of a certificate. A Collector has no jurisdiction or duty to pay money on a certificate granted by a Court in a case in which refund is not permitted on the strength of a certificate. There must be ft provision permitting refund and then only a Collector will honour the certificate issued by a Court. The only provisions which permit refund on the strength of a certificate are those contained in Section 13, 14 and 15.

If a court grants a certificate in the supposed exercise of its inherent powers, it is not a case of refund being permitted on the strength of a certificate. Section 151, Civil P. C., does not permit refund on the strength of a certificate; it does not say anything about court-fee or refund of court-fee. If a Court grants a certificate under Section 151, the Collector before whom it is produced is not bound by any law to honour it and to give money to the party producing it. If the Collector is not bound to honour a certificate issued by a Court, the Court should not grant it at all.

If the Collector has no jurisdiction to honour the certificate, the granting of it is futile; if the matter is at the discretion of the Collector there is no reason why the party should not approach him direct and why the Court should recommend his case to the Collector, it has been pointed out in Tarachand v. State of West Bengal : AIR1955Cal258 that a certificate issued by a Court is meant to be mandatory and not recommendatory; in other words a Court must refuse to grant a certificate unless it is mandatory. I am, therefore, of the opinion that no certificate could be granted by our learned brother under Section 151, Civil P. C.

7. There are some authorities to the contrary including authorities of our Court. In Munna Lal v. Ram Chandra : AIR1930All471 Mukherji and Bennet, JJ., held that a Court has power in exercise of its inherent jurisdiction to grant a certificate directing refund of court-fee paid in excess by inadvertence. The learned Judges based their decision upon authorities of other Courts and thought that the granting of a certificate is necessary for the ends of justice, Section 30A did not exist in the Court Pees Act when this case was decided and the law that was applicable before its enactment in 1938 cannot be applied now.

In Om Prakash Gupta v. United Provinces : AIR1951All205 , to which one of us was a party, a Court's power to grant a certificate in the exercise of its inherent jurisdiction was seriously questioned. I would only quote from our brother Dayal's judgment; he stated at p. 226:

'I am not inclined to agree with the view that the Court has inherent power to refund court-fees ....... It is dear therefore, that the payment of court-fee is a condition precedent for the Court's taking cognizance of a plaint or taking notice of any other document; and is not dependent on what action is taken in the case. In this view of the matter, no question for the refund of any court-fee paid and utilised can arise in any circumstance.'

In (S) AIR 1955 Cal 258 (G) Chakravartti C. J. with the concurrence of Lahiri, J., said at page 261:

'The Legislature seems to have applied its mind to the question whether the fee levied in the first instance should be retained in all cases and has specifically indicated the occasions on which the fee should be refunded. That being so, it cannot possibly be within the jurisdiction of a court of law to modify or add to the provisions of the taxing statutes and interfere indirectly with the revenues of the State by purporting to make what it considers to be equitable adjustments of the court-fee in exercise of its Inherent power. To do so would be to interfere with the revenues of the State in the face of the statutes.'

The learned Chief Justice however later observed that refund can be ordered in the exercise of the Inherent powers where there has been a payment or overpayment, not required or warranted by the relevant statute, but which is not covered by the specific provisions for refund contained in the Court-fees Act. Section 30-A does not exist in the Court-fees Act as in force in Bengal; therefore the learned Chief Justice did not have to consider the effect of the provision that a Collector will pay money only where refund is permitted on the strength of a certificate granted by a Court.

In Abodh Bala Ghose v. Radharani Dasi 55 Cal WN 417 (J) it was held that a Court has inherent power to direct refund of court-fees in cases not covered by Section 13 to 15 of the Court-foes Act, when it finds that the excess court-fee was paid in compliance with an order of the Court which proceeded on a wrong view of the tow or through inadvertence or mistake. But it was observed at page 420:

'The above principle cannot, however, be invoked by a party who is required to pay court-fees for getting the relief, claimed by him. His eventual success or failure to obtain the relief claimed by him is wholly immaterial in determining his right to get a refund of court-fees. Thus when a party filed an appeal which became unnecessary, because of his success in some other proceeding, e.g., granting of a petition for amendment, and then applied for refund of court-fees, paid on the Memorandum of Appeal, the High Court of Madras refused to direct a refund.'

In this case also the provisions of Section 30-A could not, and did not, come up for consideration. On consideration of the provisions of the Court-fees Act and the authorities I come to the conclusion that in this State at least a Court has no inherent power to grant a certificate for refund of court-fee.

8. Inherent powers are exercised by a Courtin order to secure the ends of justice or to prevent an abuse of process of court and for noother purpose. Neither is there any case of securing the ends of justice nor of preventing an abuse of process of court by allowing refund of excess court-fee paid by a party, and particularlywhen paid by him voluntarily. The matter ofwhich our learned brother was seized was whether the plaintiff's suit should be decreed or not; in order to do justice in that case our learned brother was not at all concerned with the question or excess court-fee paid by the appellant and was not required to grant a certificate for its refund.

The merits of the revision application pending before him had absolutely nothing to do with the question of refund. The question of refund was an entirely new question. Nor was there any question of abuse of process of Court, because the excess court-fee had been paid by the appellant before he filed the revision application. Therefore, there was actually no question of exercising inherent powers. Inherent powers are not to be exercised arbitrarily or in an autocratic manner. The facts in the case must clamour for them.

9. Even if our learned brother could grant a certificate, I agree with him that no case was made out for granting one. The appellant himself filed the second appeal and paid the proper 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.

If the second appeal had been dismissed on the ground that it did not lie, the appellant would not have been entitled to any refund. It would be absurd if he became entitled to it merely because this Court out of indulgence allowed him to convert the second appeal into a revision application. When the second appeal did not lie he should not have filed it at all. When he filed it and allowed an objection to be raised against its maintainability and the objection to be argued and it was finally held that it did not lie, the court-fee paid on it served its purpose and could not be refunded.

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.

In any case, the matter was at the discretion of our learned brother and no appeal can be successful unless it was established that the discretion was exercised arbitrarily and against the well established principles. No appeal lies against refusal to exercise inherent powers.

10. I would , dismiss this appeal with costs.

Beg, J.

11. I agree with my learned brother that the order appealed against is not a judgment in law, and is therefore not appealable. It is not therefore, necessary for me to express any opinion on other points.

BY THE COURT:

12. We dismiss the appealwith costs.


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