V.P. Tyagi, C.J.
1. This revision application has been filed by the plaintiff petitioner for the refund of the court fees on the plaint which was returned to him under the following circumstances.
2. A suit for partition was filed by the plaintiff. But during the pendency of the suit his father made a will of his share in his favour and his father died after executing the saide will The share that was to come to the plaintiff on account of the demise of his father was swelled and, therefore, the court of Additional Civil Judge, Udaipur had no jurisdiction to entertain that suit. The plaintiff was, therefore, compelled to bring out a fresh suit in the court of the District Judge. But at the time of the filing of the second suit court fee stamps filed in the first suit could not be returned to the plaintiff because of the stay order that was passed by this Court in a revision petition filed by the opposite party. After the revision of the opposite party was dismissed, the plaint was returned to the plaintiff by the Additional Civil Judge, Udaipur but the court fees could not be used by the plaintiff in the second suit which was already filed under the circumstances of this case.
3. The plaintiff petitioner applied to the original court under Order 7 Rule 10 read with Section 151 C. P.C. for the refund of the court fees as he could not use the stamp affixed on the first plaint. The learned Judge dismissed the plaintiff's application on the ground that it does not fall within any of the provisions of the Court Fees Act relating to the refund of the court fees. The learned Judge was also of the opinion that the discretion under Section 151 C.P.C. under the facts of this case could not be exercised in favour of the petitioner plaintiff, to is retarget this order that the present revision application has been preferred b/ the plaintiff petitioner.
4. Mr. Jain representing Jagdish Chandra defendant respondent urged that the discretion having been exercised by the trial court under Section 151 cannot be challenged in revision application to this Court He also argued tint the refund of the court fees in the present circumstances would create a bad precedent and therefore, the revision application must be dismissed. He has been supported be the learned Government Advocate also.
5. This Court in Jethanand Wadhumal & Co. v. Totaram Hardawrimal 1959 RLW 217 has held that the court has a jurisdiction while exercising its inherent power to refund the court fees if the case does not fall within the specific provisions of the Court Fees Act In that case the plaintiff while filing an appeal instead of fixing the court fees of Rs/- erroneously fixed a court fee of Rs. 125/- and, therefore, he prayed for the refund of the excess court fees on the ground that inadvertently the court fees of Rs. 125/- was affixed on the memo of appeal. There was no provision in the Court fees Act under which the court could order the return of the court fees which was inadvertently filed on the memo of appeal though this provision has now been introduced in the in the new Rajasthan Act but the learned Jdudge was of opinion that the court had an inherent jurisdiction in such circumstances to order for the refund of the court fees.
6. In the present case the court fee stamps returned with the plaint could not be used be the plaintiff on the second plaint produced before the District Judge because be that time fresh suit had already been filed by the plait tiff for partition as the return of the former plaint was delated because of the stay order obtained by the deposited party and, therefore, whatever the stamps were affixed on the plaint, which was ultimately returned to the plaintiff could not be used by him. Under these circumstances, it is vehemently urged by the learned Counsel for the plain tiff petitioner that he should not be made to suffer because it was not within his control to utilise the court fee sumps affixed on the plaint which was dismissed by this Court. According to Mr. Maheshwair the delay caused in returning the former plaint was not due to am fault of his client and, therefore, he should not be made to suffer for the actuate taken by the opposite party to cause the delay to secure the order of the Court for the return of the suit. In my opinion the learned Counsel for the petitioner is correct in his submission that there was no fault on the paint he client in not using the stamps while filing the second suit for partition at d. then fore, in these circumstances he should not be penalised for not exercising the discretion vested in the court under Section 151 C.P.C. I do not think that a bad precedent shall be created if the inherent power is used by the court in such circumstances when the litigant is left with no remedy but to seek his relief under the inherent powers.
7. It transpires from the perusal of the impuged order that the court was belabouring under a mistaken belief that it had no inherent power under Section 151 C.P.C. to pass the order for the refund of the court fees to the plaintiff. Under these circumstances it is difficult to say that the jurisdiction vested in the court under Section 151 C.P.C. has been exercised by it and exhausted there med available to the plaintiff. This Court in revision if passes an order under Section 151 C.P.C. it cannot be said that it is interfering with discretion already exercised by the trial court. In my opinion the trial court has obviously erred when under the mistaken belief it passed the order that it had no jurisdiction to order for the refund of the court fees The question of interfering with the discretion of the trial court therefore does not arise.
8. For the reasons mentioned above, the revision application is allowed and it is hereby ordered that the court fees affixed on the plaint filed by the plaintiff petitioner in the first suit before the Additional Civil Judge, Udaipur be refunded to him. No order as to costs.