(1). This is a petition under S. 115 C.P.C. to revise an order of the Subordinate Judge of Madurai, in an application made under S. 151 of the Code for a direction for refund of the court fee paid on the plaint on the ground that by reason of the Madras Buildings (Lease and Rent Control) Act 1960, as amended by Madras Act 11 of 1964, which came into force on 10-6-1964, the suit stood abated and all the rights which had accrued to the plaintiffs prior to the amendment became unenforceable. The suit is stated to be for ejectment of the defendant-tenant. The court below was of the view that inasmuch as there was no provision in the Madras Court-fees Act and Suits Valuation Act 1955, no refund of the court fee could be ordered. It also relied on Tarachand Ghanshyamdas v. State of West Bengal (S) where the view was taken that if in the Act provision was made for refund in particular cases, but not in other cases, the inherent power under Sec. 151 of the Code, could not be invoked and the Act should be taken as exhaustive.
(2) This court also took a like view in Nagarathnam, in re . But there, Panchapakesa Aiyar J directed issue of a certificate in exercise of the inherent powers of the court under S. 151 C.P.C. on the view that the Court-fees Act in the matter of refund was not exhaustive. The Court-fees Act, as it existed then provided by Ss. 13, 14 and 15 for refund of court-fee in certain specified cases. That was a case, which was not covered by any of these sections. There, the petitioner filed a second appeal, but then the dispute was compromised, with the result the second appeal became unnecessary. Thereafter, refund of the court fee paid on the Memorandum of second appeal was applied for. This court held:
"There was no provision of the Court-fees Act on which petitioner could rely for a refund of the court fee paid on a memorandum filed but withdrawn as there was no mistake of court in making the petitioner pay the court fee, nor was there any excess court fee paid by mistake. The remedy, if any, available to the petitioner was not to apply for a refund certificate but to apply to Government ex gratia and misericordia domini regis for a refund less the one anna in the rupee deductions, as for spoilt stamp papers, if they are pleased to grant it".
In Thammayya Naidu v. Venkataramanamma, 62 Mad LJ 541: ILR 55 Mad. 641,: (AIR 1932 Mad 438), this court took the view that it had power to allow refund of court-fee stamps and its power was not confined to Ss. 13, 14 and 15 of the Court-fees Act. In a later case, Chidambaram Chettiar, in re, ILR 57 Mad. 1028: (AIR 1934 Mad 566) (SB) it was, however, held that the court could only order refund of court fees under S. 151, where there was an excess payment made by mistake or where on account of the mistake of the court a party had been compelled to pay excess court fees. But it was pointed out by the Division Bench in that case that out side these cases, the court had no power to order refund under S. 151 of the Code.
(3) It follows, that this court has a limited power to order refund, in exercise of its inherent power under S. 151 of the Civil Procedure Code, but it does not extend to cases other than the instance mentioned in ILR 57 Mad 1028: (AIR 1934 Mad 566) (SB). Apparrently, this decision proceeded on the basis that if a party was compelled because the court took a particular view to pay court fee, it had won inherent power to set its own mistake right. It was, perhaps, on this ground the court considered that the inherent power of the court under S. 151, C.P.C. would extend to refund of court fees in the particular cases of mistakes or oversight by court, which was responsible for the excess court fee paid by the litigant.
(4) Having said all that, Panchapakesa Aiyar J also, as already mentioned, pointed out that the person who has paid excess court fee or who wants refund of court fee would not be without a remedy merely because the Court-fees Act does not cover the case. I think so too. The party can apply to the Government and ask for refund ex gratia and misericordia domini regis, after deduction of the usual percentage, namely, one anna in the rupee or whatever it is. The learned judge in that case directed issue of a certificate that the second appeal there was not numbered or heard by the court, that the appeal memorandum had been stamped with a certain court fee and that the stamps had been defaced by the High Court in the usual course. This court also directed return of the appeal memorandum so that the applicant there might prosecute his remedy for ex gratia refund from the Government.
(5) The present one is a peculiar case, when the suit was instituted it was properly instituted and the court-fee on the plaint was also properly paid. By reason of clause (iii) of S. 30 of the Madras Act 18 of 1960, the suit was competent, as it is said that the premises in question in the suit were such as would be covered by that provision. But the Madras Buildings (Lease and Rent Control) Amendment Act 1964 enacted by S. 3 every proceeding in respect of any non-residential building or part thereof pending before any court on the date of the publication of the Act and instituted on the ground that such building was exempt form the provisions of the principal Act by virtue of clause (iii) of S. 30 shall abate in so far as the suit related to such building. The Act went even further by that section and provided that all rights and privileges which might have accrued before such date to any landlord in respect of any non-residential building by virtue of sec. 30(iii) of the principal Act, shall cease and determine and shall not be enforceable. The results was, the suit could no longer be continued for no fault of the petitioners. No doubt, the Court fees and Suits Valuation Act, 1955 does not contemplate such a situation. But it is obvious that justice demands in the circumstances that the petitioners should not be made liable for the entirety of the court fee. I am told that issues had been settled and the suit was ripe for hearing. Taking that into account, I think that, one half of the court fee may reasonably be refunded. But, as already stated, this court's power being limited, it will not make a direction for refund of the court fee in cases which fall outside the scope of Madras Court fees and Suits Valuation Act, and the particular cases covered by Chidambaram Chettiar In re, ILR 57 Mad 1028: (AIR 1934 Mad 566). However, there should be no objection for the court below to issue a certificate that the court fee stamps on the plaint had been cancelled and that the suit, as a result of the Amending Act 11 of 1964, had abated and could not be prosecuted by the petitioners, and one half of the court fee may reasonably be refunded after proportionate deduction of ten pies a rupee. The court below will have to return the plaint, if the petitioners so desire, so that they may apply to the Government for refund.
(6) The petition is dismissed.
(7) Petition dismissed.