1. This is an application made by Sohan Singh praying for a certificate directing the refund of court-fee paid by him in Regular First Appeal No, 27-D of 1952.
2. The facts of the case are that Sohan Singh petitioner brought a suit for the recovery of Rs. 11,800/- but the suit was dismissed with costs. An appeal was brought in this Court and the appeal was allowed, the decree of the trial Court was pet aside and the case was remanded ''for redecision in accordance with law after complying with the directions given above.'
3. This Court held that the plaintiff was entitled to produce and prove certain documents. The Court also found that the evidence of a certain witness would have helped in coming to 'a correct decision on the dispute involved in the case', and therefore this Court also directed that this witness be examined.
It was also observed 'both parties are allowed to produce all documents on which they rely and such oral evidence which they consider relevant. This involves retrial of the suit and I think in the interests of justice this should be allowed.' In other words, it shows that there was no proper trial of the suit and therefore the decree has to be set aside and the case remanded for retrial, which would fall under Rule 23A of Order 41 Civil P. C. which provides :
'Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point and the decree is reversed in appeal, and a retrial is considered necessary, the appellate Court shall have the same powers as it has under Rule 23.'
4. The contention of the learned Advocate-General is that this Court has no power of ordering refund of the court-fee excepting as provided in Sections 13, 14 and 15, Court-fees Act and that this case does not fall under Section 13, Court-fees Act and therefore no refund can be allowed. Now, Section 13 provides:
'13. If an appeal or plaint, which has been rejected by the lower Court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received, or if a suit is remanded in appeal, on any of the grounds mentioned in Section 351 of the same Code for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate, authorising him to receive back from the Collector the full amount of fee paid on the memorandum of appeal.'
5. If it were to be interpreted strictly it would mean that in no case excepting that provided for in Ss. 13, 14 and 15 would an appellant be entitled to a refund, but all Courts in India have gone beyond this and have held that there are other cases also which are outside this section in which a refund can be allowed.
The leading case is of Madras in 'Chintakayala Thammayya Naidu v. Chintakayala Venkatraman-amma, 55 Mad 641 : (AIR 1932 Mad 438) (A) where it was held that even in cases not covered by Ss. 13, 14 and 15, Court-fees Act, the High Court can Under Section 151, Civil P. C. order refund of court-fee paid in excess when obvious injustice would be done if it were not repaid. There are several other cases of that Court which have taken the same view, and it is not disputed by the learned Advocate-General that there is a large body of precedents supporting the view that a refund is allowable in cases not strictly falling under Section 13 e.g. cases where excess court-fees have been paid under a mistake or under the order of Courts.
6. As this was a remand under Rule 23A of Order 41 it has the same incident as remand under Rule 23. The former rule expressly provides that the appellate Court shall have the same powers as under Rule 23. If it were read in this light, then the plain-tiff would be entitled to an order of refund.
7. It has been held in the Lahore High Court that where a Court remands a case under its inherent powers it can also order refund of court-fee under the same inherent powers. Tek Chand J., in Mt. Gendo v. Radhe Mohan, AIR 1932 Lah 219 (B) took this, view and so did Taft J. in Central Bank of India v. Thabur Das, (AIR 1933 Lah 135)(C).
8. Abdul Rashid J. in Firm Hari Ram & Sons v. H. O. Hay AIR 1939 Lah 257 (D) held that where there is no real trial of the main issues involved in the case the appellant is entitled to a refund of court-fee paid by him on the memorandum of appeal and relied upon a judgment of the Lucknow Chief Court in Mohammad Sadiq Ali Khan v. Saiyid Ali Abbas 7 Luck 588: (AIR 1933 Oudh 170) (1) (E) where it was held that the Court had inherent jurisdiction to order refund of court-fee even in cases which do not fall within Section 13, 14 or 15, Court-fees Act.
Abdul Rashid J., was also of the same opinion. The facts of AIR 1939 Lah 257 (D), were very much similar to those in the present case. In the Luck-now case which I have cited above an appeal was filed but was withdrawn on the ground that it was wholly unnecessary and no proceedings excepting the admission of the appeal had taken place and even in that case a refund was ordered.
9. In Sher Mohammad v. Mian Ahmed AIR 1927 Lah 592 (P), Jai Lal J. allowed refund of court-fee where a suit was dismissed on the ground that a document relied upon was inadmissible in evidence and in appeal the document was held to be admissible and the case was remanded.
10. The learned Advocate-General relied on a judgment of the Supreme Court in Om Parkash Gupta v. State of Uttar Pradesh (S) AIR 1955 SC 600 (G). In that case a dismissed servant ofthe State asked for a declaration that the order for his dismissal from service was wrongful and that he still continued to be a member of the Civil Service entitled to full pay with full increments. In the alternative be prayed for a declaration that the order of dismissal was wrongful and that a decree to the extent of Rs. 1,20,000/- by way of damages be passed in his favour and he paid court-fee on this amount. This alternative relief was deleted from the plaint which was amended as a result of the subsequent decision of the Privy Council.
It was held that the decision of the Privy Council clarifying the law could not be a ground for refund and court-fee when at the time it was paid it was in accordance with law as it then stood. It was really in the circumstances of that case that it was said that the refund was rightly not allow- ed by the High Court. It is not a general statement of the law, but their Lordships were careful to confine it to the facts of that case.
11. The Advocate-General also relied on a Division Bench judgment of this Court. Discount Bank of India v. A. N. Mishra, (S) AIR 1955 Punj 165 (H). In that case the Bank proceeded against Mishra for the recovery of Rs. 40,000/- but the euit was dismissed. The Bank brought a first appeal to this Court but the Bank was ordered to be Wound up and about two years later the liquidator applied under Section 151 for the withdrawal of the appeal and for the refund of court-fee and a Bench of this Court decided that the power of ordering refund was limited to three cases (1) under the statute itself, (2) when there is over-payment as the resuit of a mistake and (3) when there is over-payment as the result of an order of a Court.
The matter now before us was not before that Bench and the decision must be confined to the facts of that case as the Supreme Court themselves confined their judgment to the circumstances of the case before them. The appeal in that case had become infrurtuous & therefore a refund could neither be ordered under the Court-fees Act nor under the inherent powers of the Court, At least I know of no case in which refund has been ordered in those circumstances nor has such a case been placed before us.
12. The learned Advocate-General also relied on two cases of the Bombay High Court, (1) Karfule Ltd v. Arical Daniel Varghese, AIR 1953 Bom 73 (I) where refund was refused after an appeal was withdrawn as a result of a compromise and it was held that the High Court had no inherent power to order refund in that case. The second Bombay case relied on is Ranchhodlal Maneklal v. Maneklal Pranjivandas AIR 1953 Bom 436 (J), where it was held that court-fees cannot be ordered to be refunded either under Section 13 or under Section 151 Civil P. C. where the order of remand Is made under the inherent jurisdiction of a Court.
The Bench followed Karfule's case AIR 1953 Bom 73 (I) and pointed out that merely because the appellate Court did not dispose of the appeal on merits but made the order of remand pursuant to a decision on the question of jurisdiction a claim for refund was not justifiable. It appears that in the Bombay High Court there is no such rule corresponding to Rule 23-A which makes the powers of the appellate Court the same as under Rule 23 in cases such as the one before us. It also appears that in the Bombay High Court the prevailing view is that if a case falls under Section 13 a refund will be allowed and not otherwise, but the position in this Court is different.
13. In the Calcutta High Court the view seems to be more in favour of the litigant. In J.G. Gal-staun v. Janaki Nath, AIR 1934 Cal 615 (K), it was held that Section 13 is not exhaustive and the High Court in suitable cases may exercise its inherent powers under Section 151, Civil P. C. and order refund of court-fees paid.
In that case the appeal was rejected because there was delay in filing the memorandum of appeal but it was not due to the negligence on the part of the applicant but due to some gross negligence on the part of his legal adviser. In these circumstances, it was held by the Bench that there was no want of bona fides on the part of the petitioner and therefore it was a fit case for the exercise of inherent powers under Section 151.
14. The above discussion therefore shows that where a remand is under Rule 23 of Order 41 Civil P. C. a refund is allowable under Section 13 Court-fees Act. But practically in every Court excepting the Bombay High Court the power of the Court to order refund has been extended to cases which fall under the inherent powers of the Court.
In other words, refund can be ordered ex debi-to justitiae. The refund in the present case can be supported on two grounds (1) that there was no proper trial in that documents which should have been on the record were not taken and witnesses who should have been examined were not examined and therefore the Court could and did order the taking of this additional evidence so as to be able to arrive at a proper decision, and in order that neither of the two parties may be prejudiced, opportunity was given to both the parties to lead such other evidence which they thought fit so that the true position may be brought before the Court.
And, as I have said above, this would fall under Rule 23-A of Order 41, Civil P. C. and therefore even under the strict interpretation of Section 13, Court-fees Act the remand is as if it was a remand under Rule 23 and therefore the case would fall within Section 13, and even if it does not fall within Section 13, Court-fees Act, the case had to be remanded for want of proper trial and is covered by the rule laid down by Jai Lal J. in AIR 1927 Lah 592 (F).
Whichever view may therefore be taken this is certainly a case in which the appellant should have the certificate for obtaining refund of the court-fee, and I would order that a certificate to that effect may be issued.
Bishan Narain, J.
15. I agree.