Skip to content


Tulsidas Narsidas Vs. Special Land Acquisition Officer, Ahmedabad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 700 of 1973
Judge
Reported inAIR1976Guj145
ActsCode of Civil Procedure (CPC), 1908 - Sections 151; Bombay Court Fees Act - Sections 43(1)
AppellantTulsidas Narsidas
RespondentSpecial Land Acquisition Officer, Ahmedabad
Appellant Advocate M.F. Thakkar, Adv.
Respondent Advocate R.K. Abichandani, Asst. Govt. Pleader
Cases ReferredIn Sawaldas Madhavdas v. Arah Cotton Mills Ltd.
Excerpt:
- - in the instant case, the appeal was withdrawn on 9th november 1970 and the application for refund was made on 22nd november 1972. it was clearly time-barred. it was later on found that some of the shares were of a company which bad its head office in england and that in england the succession certificate granted by the court in india could not operate......has invited my attention to two decisions of the high court of bombay and asked me to exercise my inherent power to refund the court-fees to the appellant.7. in ahmed ebrahim vorajee v. the government of the province of bombay, 44 bom lr 912 : (air 1943 bom 50) it has been held that the court has the inherent power tinder section 151 of the civil procedure code to order refund of court-fee paid by a party by mistake or inadvertence. it: was a case in which the applicant had applied for a succession certificate in respect of certain shares and securities after payment of the requisite court-fee. the succession certificate was granted to him. it was later on found that some of the shares were of a company which bad its head office in england and that in england the succession certificate.....
Judgment:
ORDER

1. This Revision Application is directed against the order of Taxing Officer recorded oil 27th February 19TS under the Bombay Court-fees Act, 1959. The facts of the case, briefly stated, are as under. The appellant filed in this Court First Appeal No. 97 of 1965 against the award of compensation made by the City Civil Court at Ahmedabad in respect of the land acquired under the Land Acquisition Act. That appeal was admitted. Thereafter the appeal came up for final hearing on 9th November 1970. On that day it was withdrawn by the appellant.

2. Thereafter the appellant made an application to this Court on 22nd November 1972 under Section 43 of the Bombay Courtfees Act, 1959 for refund of half the Courtfees. The Taxing Officer rejected that application on the ground that it was barred by time-

3. It is that order of the Taxing Officer which is challenged by the appellant in this Civil Revision Application.

4. Section 43 of the Bombay Courtfees Act provides for cases in which a part of the Court-fee can be refunded to the

_____________________________________________________________________________________

*(Only Portions approved for reporting by High Court are reported here).

**(To set aside the order of Taxing Officer, H. C. of Gujarat, Ahmedabad in F. A. No. 97 of 1965 D/- 27-2-1973).

_____________________________________________________________________________________

appellant. Proviso to sub-section (1) of Section 43 states as follows:-

'Provided that no such fee shall be repaid if the -amount of fee paid does not exceed five rupees or the claim for repayment is not made within one year from the date on which the suit, appeal or cross objection was settled by agreement.'

5 In view of the language used in the proviso to sub-section (1) of Section 43 it is quite clear that application for refund of Court-fees under sub-section (1) of Section 43 has got to be made within one year from the date on which the appeal was settled or brought to a termination without any effective hearing. In the instant case, the appeal was withdrawn on 9th November 1970 and the application for refund was made on 22nd November 1972. It was clearly time-barred. The Taxing Officer was, therefore, justified in rejecting that application.

6. Mr. Thakkar has invited my attention to two decisions of the High Court of Bombay and asked me to exercise my inherent power to refund the Court-fees to the appellant.

7. In Ahmed Ebrahim vorajee v. The Government of the Province of Bombay, 44 Bom LR 912 : (AIR 1943 Bom 50) it has been held that the Court has the inherent power tinder Section 151 of the Civil Procedure Code to order refund of Court-fee paid by a party by mistake or inadvertence. It: was a case in which the applicant had applied for a Succession Certificate in respect of certain shares and securities after payment of the requisite Court-fee. The Succession Certificate was granted to him. It was later on found that some of the shares were of a Company which bad its Head Office in England and that in England the Succession Certificate granted by the Court in India could not operate. The applicant, in that case, therefore, prayed for refund of Courtfees on the ground that he had paid it in respect of a Succession Certificate which could not operate outside the territories of India. The High Court of Bombay under those circumstances held that if a party has paid by mistake or inadvertence Court-fee the Court had inherent power to refund it under Section 151 of the Code of Civil Procedure.

8. In Sawaldas Madhavdas v. Arah Cotton Mills Ltd. 57 Bom LR 394 : (AIR 1955 Born 332) the facts of- the case were that when the plaintiff filed the suit the Court-fees Act of 1870 was in force and he, therefore, paid in respect of the claim made by him ad valorem Court-fee under the Court-fees Act, 1870, After the suit was decided against him, he filed an appeal against the decree. At that time a new scale of Court-fees was prescribed by the Legislature. On the Memorandum of appeal he, therefore, paid Courtfee according to the new scale. It was later on found that even on the Memorandum of appeal he was liable to pay Court-fee only under the old scale. He, therefore, applied to the Court of appeal for refund of the excess of Court-fee paid by him. it was held by the High Court of Bombay under the aforesaid circumstances that the plaintiff-appellant in that case was entitled to refund of the excess Court-fee paid by him and that the Court had inherent jurisdiction to direct refund thereof to him.

9. These two decisions do not help the appellant in the present case. What the appellant asks me to do is to exercise my inherent power under Section 151 in order to get over the bar of limitation laid down by proviso to sub-section (1) of Section 43. Inherent power of a Court cannot be exercised to defeat a legislation or to get over the bar ) of limitation. In the - instant case, if I exercise the inherent power under Section 151 shall be defeating the bar of limitation which the legislature has enacted in the proviso to sub-section (1) of Section 43. To accede to the argument raised by Mr. Thakkar is to grossly abuse the inherent power of the Court. I am, therefore, unable to uphold the argument which he has raised before me. In this view of the matter, I see no reason to interfere with the order made by the Taxing Officer. L therefore, uphold it.

10. Rule discharged.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //