(1) Aya Singh, defendant in the trial Court, presented an appeal in this Court from an order of the learned Additional District Judge dated 18-9-1967 allowing the appeal of Munish Ram plaintiff and after setting aside the judgment and decree of the trial Court, remanding the case back to the Court of First instance for re-decision. By mistake an appeal was presented in this Court as a regular second appeal from a decree on which court-fee of Rs. 686.30 Paise was affixed. The office ntoe shows that an inquiry was made from the counsel for the appellant as to how a regular second appeal lay against an order of remand. To this the counsel replied that the appeal may be treated as an appeal from order and may accordingly be registered as first appeal from order. The office, without Realizing that it was, as a matter of fact, a second appeal, for it was the second appellate jurisdiction of this Court which was being invoked, registered the appeal as an F. A. O. Instead of an S. A. O.
The appeal was on his basis marked before a Division Bench for preliminary hearing. The learned counsel for the appellant, when re-presenting the appeal with a request that the same may be treated and registered as an F. A. O., also presented an application under Section 13 of the Court-fees Act read with section 151, Code of Civil Procedure, praying for a refund certificate in regard to the Court-fee paid in excess on the ground that the excess court-fee on the memorandum of appeal was affixed under a mistaken and bona fide impression. It was stated that on a memorandum of appeal from an order, a court-fee of only Rs. 5.25 was payable, whereas in the case in hand, court-fee of Rs. 686.80 was paid under a bona fide mistake.
(2) When we heard the appeal at mtoion stage on 1-12-1968, we felt that there was no merit in the appeal, but left there was no permit in the appeal, but left the appeal pending and issued ntoice to the Central Government counsel in Civil Miscellaneous No. 45-J of 1968 for 8-2-1968. On that date, we heard arguments for btoh sides and reserved orders. The learned counsel for the appellant-petitioner has placed his reliance on a Full Bench decision of the Punjab High Court in Jawahar Singh Sobha Singh v. Union of India, in which Bhandari C. J. and Tek Chand J. have written separate lengthy judgments on the scope of the inherent power of a Court to remit or refund court-fee. In the opinion of the Full Bench, the inherent power of a Court to remit or refund court-fees is confined only to fees which have been illegally or erroneously assessed or collected and does nto extend to fees which have been paid or collected in accordance with the provisions of the Court-fees Act. Btoh sides have placed reliance on this decision.
Shri Mohindra has, however, also relied on Sohan Singh v. Oriental Bank of Commerce, and Mahadeo Ganesh v. Keshav Khanderao, : AIR1957Mad160 . In Sohan Sing.'s case, , a Division Bench of the Punjab High Court construed the order of the High Court to be a remand order under Order 41, Rule 23, Civil P. C. And allowed refund of court-fee. It also added that even if the case did nto fall within section 13, Court-fees act, the case had to be remanded for want of proper trial and that the appellant should have the certificate for obtaining refund or court-fee. The except the Bombay High Court has recognised the inherent power of the Court to order refund of court fee, adding that refund can be ordered ex debito justitiae. In the case of mahadeo ganesh, Air 1957 MB 160 the applicant there was held entitle to the refund of Court - fee paid by him under an erroneous order of the Court and it was observed that even in cases nto covered by section 13, 14 and 15 of the Court - fee Act, the Court -fees can, under section 151, Civil Procedure Code, order refund of court - fee paid in excess either by mistake, inadvertence or under some wrong order of the Court. Shri Parkash Narain has, on the toher hand, referred us to a decision of the Allahabad High Court in Tej Bahadur v. Pearelal, : AIR1957All734 , in support it is only the provisions of the Court- fees Act which justify an order of refund.
(3) Turning first to the Full Bench decision of the Punjab High Court in Jawahar Singh Sobha Singh's case, It may be pointed out that the question referred for answer by Full Bench was :
'Is the power of a Court to remit or refund Court - fees confined only to fees illegally or erroneously assessed or collected or does it extend also to fees which have been paid or collected in accordance with the provision of the Court - fees Act?'
Obviously, the Bench was nto concerned with the excess court -fee paid under an erroneous impression. It was assumed there that the Division Bench decision of Punjab High Court in Sohan Singh's case, had taken the view that the Court had full power to grant refund of Court- fees even when the fees had been collected in accordance with the provisions of law and the Full Bench apparently negavited such a view. There are quite a few reported cases of the Lahore and Punjab High Courts in which excess Court - fee paid under a bona fide but mistaken impression has been ordered to be refunded.
In Central bank of India v. Thakur Das Tulsi Ram, Air 1933 Lah 135, a learned Single Judge of the Lahore High Court upheld the inherent power of the Court btoh to remand a case nto covered by 0, 41 and also to refund Court fee under the inherent power nto covered section 13 of the Court - fees Act. Reference for a precedent to the same affect was made to Mt. Gendo v. Radhe Mohan, Air 1932 Lah 219, where Tek Chand, J. Had observed that a Court remanding a case under section 151, Civil P. C. Is equally competent to order a refund of Court - fee paid on the memorandum of appeal. In Jan Mohammad v. Amolak Ram, Air 1936 Lah 301, the court-fee paid on an appeal which did nto its and was converted into a revision was ordered to be refunded to the party concerned.
In Firm Tirath Ram and Sons v. Free India General Insurance Co., Ltd., , D. K. Mahajan, J. of the Punjab High Court directed refund of excess court-fee, when by mistake, ad valorem court-fee was paid on appeal which only required a fixed amount of court-fee. The direction for refund was given by relying on the Bench decision on Sohan Singh's case, . In Smt. Periathaya v. Narasingha Rao, : AIR1966Mad423 , a learned Single Judge of the Madras High Court recognised a limited inherent power in a Court to order refund under S. 151 of the Civil Procedure Code. It is nto necessary to refer to the decisions of the toher High Courts upholding inherent power of the Court to order refund of excess court-fee.
(4) The Court-fees Act has no preamble, but it has obviously been enacted to secure revenue for the benefit of the State. The rate at which court-fee is to be paid is determined by the Court-fees Act and it is well recognised that unless the liability to pay court-fees is clearly supportable on the plain statutory language a suitor is nto obliged to pay any court-fee. It is on this basis perhaps that inherent power of the Court is recognsied to direct refund of excess court-fee paid either under compulsion or under a bona fide but erroneous impression, if the cause of justice so demands. It is true that the Court-fees Act has made certain provisions for refund and it may be argued that the legislative intent should be held to exclude refund in toher cases, but the formidable array of authorities upholding the inherent power of the Court to direct refund ex debito justitiae, impells us also to uphold the inherent power.
It must, however, be clarified that it is nto every excess payment of court-fee which must be refunded as a matter of course. Apart from the mandatory provisions, the Court, in order to exercise its inherent power, has to consider the facts and circumstances of each case and come to a judicial determination whether or nto the cause of justice requires refund.
In the case in hand, it appears that the appellant's learned counsel, who does nto seem to be regularly practicing at the bar of this Court, erroneously thought that the remand order was equivalent to a decree and on this impression paid court-fee very much in excess of the amount prescribed, treating the appeal to be from a decree. We are satisfied that in this case, this impression was due to a bona fide mistake. We accordingly direct that a certificate should issue for refund of the excess of court-fee paid, as prayed in the application. We consider it proper before concluding to emphasise that this case is nto to be considered is precedent for refund in all cases of excess payment merely because of the ignornace of the counsel, for, it is the duty of the counsel accepting briefs in this Court to be fully informed of the legal position and each case will have to be considered on its own merits.
(5) As directed earlier, let the requisite certificate issue.
(6) Refund ordered.