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Krutibasa Nayak Vs. Sri Jagannath Mahapravu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberA.H.O. No. 31 of 1974
Judge
Reported inAIR1975Ori211
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151; Court Fees Act, 1870 - Sections 13
AppellantKrutibasa Nayak
RespondentSri Jagannath Mahapravu and ors.
Appellant AdvocateK.C.J. Ray, Adv.
Respondent AdvocateB.B. Mohanty, Addl. Govt. Adv.
DispositionPetition allowed
Cases Referred(Munna Lal v. Abir Chandl
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..........question was filed on 19-11-1974 praying for the refund of the court-fee paid on the memorandum of appeal filed under aforesaid circumstances. this petition has been filed invoking the court's inherent jurisdiction under section 151, civil procedure code. mr. ray urges that on the facts and circumstances of this case this is a fit case in which the court, in the interest of justice, should exercise its inherent powers and order refund of the court-fee paid on the memorandum of appeal.mr. mohanty, the learned additional government advocate, opposes the petitioner's said prayer by submitting that the provisions in the court fees act for the refund of court-fee are not applicable to the facts of this case; that the court, on the facts of this case, should not exercise its inherent power to.....
Judgment:

Acharya, J.

1. The petitioner has filed a petition praying for the refund of the court-fee of Rs. 490.50 paise paid by him on the memorandum of this appeal. The petitioner, was respondent No. 5 in Second Appeal No. 91 of 1971 which was allowed by Hon'ble R. N. Misra. J., by his judgment dated 18-7-1974. As the said judgment was delivered by Misra, J. while he was sitting in a Divisional Bench, Mr. Ray, the learned counsel for the petitioner, orally moved Misra, J., in his chambers on the same day for granting him leave to file appeal against the aforesaid decision. In the petition before us (at flag W) it is stated on affidavit that the petitioner's lawyer on the said occasion returned from the chamber of Misra, J., with the impression that the leave prayed for was granted by the Judge and with that impression the memorandum of appeal with court-fee of Rs. 490.50 was filed in this Court endorsing therein that the required leave for the purpose had been granted by the Judge. The memorandum of appeal was registered in the High Court office as A. H. O. No. 31 of 1974 and was placed before a Division Bench of which Misra, J., was not a member.

As in the connected records there was no order granting leave to appeal by Hon'ble R. N. Misra, J., that Division Bench directed that matter to be placed before a Division Bench consisting of Hon'ble Misra, J. When the matter thereafter came up before a Division Bench consisting of R. N. Misra. J., that Bench ordered the said matter to be placed only before R. N. Misra, J., in the Single Bench. Accordingly the matter was placed before R. N. Misra, J., in the single Bench, and he on the question as to whether leave was granted by him or not in that case, stated in his order dated 3-10-74 that after he delivered the judgment in the aforesaid second appeal Mr. Ray came to his (Misra J.'s) chambers and prayed for the said leave. But as the lawyer for the other side was not present at that time in the chambers, Misra, J., could not entertain the said prayer of Mr. Ray and expressed that Mr. Ray might make a written application to that effect. It is stated in the said order that no leave was granted by him in this case and so it was not open, to the petitioner to file an A. H. O. After stating as above. Misra, J., desired the matter to be placed again before a Division Bench.

2. After the said order of Misra, J., the petition in question was filed on 19-11-1974 praying for the refund of the court-fee paid on the memorandum of appeal filed under aforesaid circumstances. This petition has been filed invoking the court's inherent jurisdiction under Section 151, Civil Procedure Code. Mr. Ray urges that on the facts and circumstances of this case this is a fit case in which the court, in the interest of justice, should exercise its inherent powers and order refund of the court-fee paid on the memorandum of appeal.

Mr. Mohanty, the learned Additional Government Advocate, opposes the petitioner's said prayer by submitting that the provisions in the Court Fees Act for the refund of court-fee are not applicable to the facts of this case; that the court, on the facts of this case, should not exercise its inherent power to order refund of the said court-fee; and that only in cases where the court-fee is paid on a mistaken or wrong calculation of the same, or by inadvertence or being called upon by the court to pay excess court-fee, which was not required under the law to be paid, then alone the court-fee paid can be ordered to be refunded and in no other case. According to Mr. Mohanty the court-fee paid on the memorandum of appeal is in accordance with law and the prayer for refund of the same is not on the basis of any mistake in the payment of the same but only on the basis of the mistake in filing the appeal as stated above, and so the prayer for refund cannot be granted.

3. In the Division Bench decision of this Court reported in AIR 1961 Ori 89 (Syed Sakhawat Hossain v. State of Orissa) it has been held:--

'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 a refund of the court-fee already paid.'

That view has been taken on a consideration of the decision reported in AIR 1934 Mad 566 and AIR 1960 Andh Pra 34. In the decisions reported in AIR 1936 Cal 347 (Kumud Nath Das v. Govt. Pleader); AIR 1943 Bom 50 (Ahmed Ebrahim Vorajee v. Govt. of the Province of Bombay); AIR 1950 Bom 4 (Vishnuprasad Na-randas v. Narandas Mohanlal); AIR 1935 Cal 707 (Indu Bhusan Roy v. Secy, of State); AIR 1933 Oudh 170 (1) (Mohammad Sadiq Ali Khan v. Ali Abbas) and AIR 1939 Lah 257 (Firm Hari Ram and Sons v. H. O. Hay) the Courts by exercising their inherent power under Section 151. Civil Procedure Code ordered refund of the court-fee paid in those cases.

In the Full Bench decision reported in AIR 1966 Cal 267 (Eagle Plywood Industries (P) Ltd. v. Amulya Gopal) it has, amongst other things, been held in paragraph 8 thereof that where the matters are within the scope of Sections 13 to 15 of the Court Fees Act, the provisions of those sections must be strictly applied, and in matters out of the scope of those sections the court has in certain circumstances inherent jurisdiction to order refund of court-fee on the principle that every court has inherent power to do real and substantial justice for the administration of which it exists.

Thus there is no doubt that the provisions of Sections 13 to 15 of the Court Fees Act are not exhaustive and that the inherent power of the court under Section 151, Civil Procedure Code can be exercised for the purpose of ordering refund of court-fee in a fit case even though that case does not come within the scope of Sections 13, 14 or 15 of the Court Fees Act. .

4. It was observed by Peacock, C J., in Hurro v. Sooraodhonee, (1868) 9 Suth WR 402:

'Since laws are general rules they cannot regulate for all times to come so as to make express provisions against all inconveniences, which are infinite in number, and so that their dispositions shall express all the cases that may possibly happen. It is the duty of the Judges to apply the laws not only to what appears to be regulated by their express dispositions but to all the cases to which a just application of them may be made, and which appear to be comprehended either within the express sense of the law or within the consequences that may be gathered from it.'

The inherent powers of this court, provided under Section 151, Civil Procedure Code are meant for the purpose of doing real and substantial justice in matters before it and the said power can justly and properly be invoked in the interest and/or to meet the ends of justice where there is no other remedy available to a party. Every court has power to act ex debito justitiae to prevent injustice or unnecessary hardship to a party. The inherent power has been conferred on the courts to do the right and/or to undo a wrong in the administration of justice, and in that direction all necessary orders can be passed by virtue of the inherent powers excepting those which are expressly or by necessary implication prohibited by the law.

Excepting such cases of prohibition, the law, for obvious reason, does not limit or restrict the exercise of the inherent powers by courts to any particular type or class of cases; and the courts also do not hazard to give an exhaustive list of cases in which the said power can be exercised. Exercise of such powers has to be left to the discretion of the courts who in the interest of justice and to prevent any abuse of the process of the court can and should pass necessary and substantial order in that direction, though there may not be any provision for the same in the relevant law.

5. In the Full Bench decision reported in AIR 1958 All 766, (Munna Lal v. Abir Chandl cited by Mr. Mohanty, the learned Judges on the facts of that case disallowed the prayer of the appellant to refund the court-fee paid on that appeal. The facts, in short, on which the above decision was arrived at, are that the defendants filed the First Appeal and paid the ad valorem court-fee on the valuation of the suit. The decree against which the appeal was preferred was a conditional decree and it had been provided in that decree that if the plaintiff-decree-holder made any default in making a certain payment within the time allowed then the suit must stand dismissed. After the appeal was filed the plaintiff-decree-holder made a default which resulted in the automatic dismissal of the suit. Accordingly the appeal became infructuous. The appellants therefore applied for the withdrawal of the same before it was formally admitted by the court and the court allowed the said prayer.

The appellant thereafter filed an application for the refund of the court-fee paid on the memorandum of the said appeal, and that matter was referred to a Full Bench of that court, which rejected the said prayer on the ground that the amount of court-fee in that case was paid properly and intentionally as the appeal otherwise would not have been entertained at all. On these facts they did not exercise their inherent power to grant the said prayer. Thus the facts and premises in which the said decision was arrived at are entirely different from those in the present case before us and so the same is not an apt citation for this case.

6. In the case reported in AIR 1966 Cal 267 relied upon by Mr. Mohanty, the court, on the facts of that case, held that no equitable consideration arose for making the order of refund of the court-fee. The facts of this case were that a memorandum of appeal was filed out of time, together with an application under Section 5 of the Limitation Act for condonation of the delay. In order to make the application under Section 5, it was necessary to affix stamps of the full value upon the memorandum of appeal. Without affixing such stamps, the application, under Section 5 could not be entertained. The petitioner moved that application and lost it. On these facts the learned Judges observed that the appellant had taken the risk of either being successful or losing the said application and simply because the said application became unsuccessful that is no reason for exercising the inherent powers of the court for passing an order of refund. Thus the said decision is distinguishable on facts.

A few other decisions in which the prayer for refund of court-fees has been disallowed are all on facts different from the facts of the present case and do not afford a proper guideline to decide a matter of the present nature.

7. The memorandum of appeal filed in this case cannot at all be accepted and entertained as an appeal, as no leave for the films of the appeal had actually been obtained, and accordingly in the eye of law there was no appeal before this court against the judgment and decree of the Single Judge. Merely because a memorandum of appeal with court-fee paid thereon was filed in the office of this court and the office appended a number to it. It did not become an appeal for any intent or purpose. This memorandum of appeal, as stated earlier, was filed because of the mistaken impression of the counsel of the petitioner that leave to appeal as required had been granted in the case, though in fact no such leave had been granted.

Relying on the mistaken impression of the lawyer the petitioner had to pay good money for no cause or purpose. As is evident from the facts of the case the lawyer, at the time he advised his client to pay the court-fees, was certainly labouring under an honest belief that the required leave had been granted. As soon as it was discovered that no leave had been granted to file the appeal, the petitioner's lawyer made this move for the refund of the court-fee. The appeal thus was filed with the abovementioned mistaken impression of the lawyer and the lawyer immediately on the discovery of the real fact has made a move for the refund of the court-fee. The appeal as such has not been entertained, nor any order on that appeal has so far been passed by this court. The only matter which so far has been dealt with by this court is relating to the fact as to whether leave, as required, was granted or not. The matter which has come before us is only a matter relating to the refund of the court-fee and we are called upon to decide that matter on the petition filed to that effect.

In the decisions reported in AIR 1936 Cal 347, AIR 1943 Bom 50, AIR 1950 Bom 4 and AIR 1935 Cal 707 the principle upon which the courts acted under Section 151, Civil Procedure Code seems to be that if a party paid court-fees which he was not liable to pay or paid court-fees more than what he was liable to pay through mistake or inadvertence. Government could not be allowed to take advantage of such mistake.

In the facts and circumstances under which court-fee was paid in this case and as matters stand at present as stated above, in our view this it a fit case in which on equitable considerations and for doing proper justice to the case, the inherent powers of the court can lastly be exercised for passing an order directing refund of the court-fee paid on the memorandum which has been numbered as A. H. O. No. 31 of 1974.

8. Accordingly a certificate be issued in favour of the petitioner authorising him to take refund of the court-fee paid by him on his aforesaid memorandum. The said memorandum be struck off from the registry of this court and be returned to the petitioner.

Mohanti, J.

9. I agree.


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