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Syed Sakhawat HossaIn Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 12 of 1958
Judge
Reported inAIR1961Ori89; 26(1960)CLT480
ActsCourt-fees Act, 1870 - Sections 13, 14 and 15
AppellantSyed Sakhawat Hossain
RespondentState of Orissa
Appellant AdvocateS.K. Ray and ;A.K. Tripathy, Advs.
Respondent AdvocateP.K. Mohanty, Adv. and ;Adv. General
DispositionApplication rejected
Cases Referred and Krishnamurthi v. Krishnan
Excerpt:
.....filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the..........at rs. 2000/-.3. the appeal was filed on 26th february 1958 and was registered in due course. the stamp reporter pointed out that the court-fee was deficient to the extent of rs. 1113-12 and that the valuation for the purpose of the appeal should have been noted as rs. 13795/- as in the decree. the petitioner's advocate however challenged the stamp reporter's report and the matter was heard by the registrar who accepted the view of the stamp reporter. then, the petitioner's advocate asked for one month's time to pay the deficit court-fee. time was accordingly granted but the petitioner failed to pay the deficit. on the other hand he applied for permission to appeal in forma pauperis. that application was also dismissed in due course.4. after the pauper application was dismissed, the.....
Judgment:

Narasimham, C.J.

1. The only point for consideration in this petition is whether the petitioner is entitled to a refund of the court-fee paid on the memorandum of appeal under the following circumstances :-

2. The petitioner was defendant No. 3 in Money Suit No. 241 of 1954 in the Court of the learned Additional Subordinate Judge, Cuttack. In his decree the learned Judge directed that the petitioner (defendant No. 3), defendant No. 1 and defendants 4 to 4/d should pay to the plaintiff the sum of Rs. 13,000/- as claimed, with some extra amount. The petitioner (defendant No. 3) alone filed the present First Appeal No. 12 of 1948 with a court-fee of Rs. 268-12 nP. valuing the appeal for the purpose of court-fee at Rs. 2000/-.

3. The appeal was filed on 26th February 1958 and was registered in due course. The Stamp Reporter pointed out that the court-fee was deficient to the extent of Rs. 1113-12 and that the valuation for the purpose of the appeal should have been noted as Rs. 13795/- as in the decree. The petitioner's Advocate however challenged the Stamp Reporter's report and the matter was heard by the Registrar who accepted the view of the Stamp Reporter. Then, the petitioner's Advocate asked for one month's time to pay the deficit court-fee. Time was accordingly granted but the petitioner failed to pay the deficit. On the other hand he applied for permission to appeal in forma pauperis. That application was also dismissed in due course.

4. After the pauper application was dismissed, the petitioner filed another application saying that he did not wish to prosecute the appeal and claiming a refund of couht-fee already paid by him. On the 2nd November 1959 the appeal was dismissed for non-payment of deficit court-tee, and then, on a proper application by the petitioner, the question as to whether the petitioner was entitled to a refund of the court-fee already paid in the aforesaid circumstances was fully argued.

5. It is well settled that even in those cases: which do not come within the scope of Sections 13, 14 and 15 of the Court-fees Act a Court has inherent power in certain circumstances to grant refund of the court-fee already paid. The principle has been laid down in, In re Chidambaram Chet-tiar, AIR 1934 Mad 566 which was reiterated in, In re Sarojini Devi, AIR 1960 Andh Pra 34. With respect we agree with the said view. But in the instant case the petitioner had filed some court-fee, under the belief that it was the proper court-fee payable and had also challenged the report of then Stamp Reporter to the effect that there was deficiency.

It was only after this point was argued on merits before the Registrar and lost, and the petitioner's further application for permission to appeal in forma pauperis was also rejected, that he came up with this prayer for refund. This case is hardly distinguishable from that reported in Janak Pra-sad v. Askaran Prasad, AIR 1928 Pat 29 where, on facts almost identical with those of the present case. A Division Bench held that the applicant was not entitled to any refund. To a similar effect are the observations of the Allahabad High Court in Ramakant v. Murlidhar, AIR 1937 All 505.

6. Mr. Tripathy however relied on J. C. Galstaun v. Janaki Nath, AIR 1934 Cal 615. There, an appeal was filed beyond the period of limitation due to the wrong advice given by the petitioner's lawyer. That appeal was not even registered and then, when a petition was filed for refund of the court-fee, the Calcutta High Court directed that refund may be granted as prayed for, in exercise of the inherent powers of the Court. The facts of that case are different.

7. Mr. Tripathy then relied on some observations in Mohammed Sadiq Ali v, Ali Abbas, AIR 1933 Oudh 170 (1) and Krishnamurthi v. Krishnan-da Mudaliar, (1958) 1 Mad LJ 183 and AIR 1960 Andh Pra 34. So far as the Oudh case is concerned the facts are not clear from the report In that case, it seems that apart from a mere admission of the appeal nothing further was done. The other two cases are clearly distinguishable. There, while reiterating that the petitioner was not entitled to refund of court-fee paid, under the inherent powers of the High Court, the learned Judges merely gave a certificate mentioning the facts on the basis of which refund was asked for, leaving it to the party to apply to the Revenue authorities for refund either ex-gratia or under the provisions of the Stamp Act.

Moreover in (1958) 1 Mad LJ 183, the appeal itself was not registered and taken on the file of the High Court. Similarly in AIR 1960 Andh Pra 34, the appeal papers were returned to the appellant-petitioner for compliance with certain conditions and without representing the appeal they applied for refund. But as the Stamps had been defaced their Lordships thought it advisable to give a certificate mentioning the facts for the purpose of enabling the appellant-petitioners to apply for refund to the Revenue authorities.

But as already pointed out, the present case is clearly distinguishable on facts. The appeal was taken on the file of the High Court and the question as to whether proper court-fee was paid or not, was duly considered both by the Stamp Reporter and the Registrar and he was given time at his request to pay the deficit. It was only subsequently that he Came up with a prayer for filing the appeal in forma pauperis and when that prayer was rejected he came up with a petition that he I did not wish to prosecute the appeal.

In these circumstances following AIR 1928Pat 29, AIR 1937 All 505 and AIR 1934 Mad 566,we are of opinion that this application for refundof court-fee is not maintainable. It is accordinglyrejected but we make no order as to costs. Weare grateful to the learned Advocate-General whoat our request, assisted the Court on the point oflaw involved.

Das, J.

8. I agree.


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