1. In this case an appeal memorandum was filed against a particular decision of Sub Court, Vellore, in partition suit. A court-fee of Rs. 200 which was the correct court-fee was affixed to the Memorandum of appeal. But, before the appeal memorandum was numbered and when it was in the stamp register stage, having been numbered as S. R. 17499 of 1968, the appellant were able to compromise the matter with the respondents and therefore filed C. M. P. 1030 of 1971 to withdraw the appeal. That permission was granted. By this application C. M. P. No. 12034 of 1970, the appellants pray for issue of a certificate for refunding the court-fee of Rs. 200.
2. It is conceded by Sri T. V. Balakrishnan, learned counsel for the petitioners that the prayers, is not governed by any specific provision of the Court fee Act of 1955, (those provisions are contained in Section 66 to 70); but the learned counsel relies on a decision of a Bench of this court in Ramaswami Nadar v. State of Madras : AIR1971Mad136 . That was a case where a writ appeal was filed, but before it was numbered and was in the stamp register stage, the petitioner got the relief he wanted outside the court and thereafter he filed the application for refund of the court-fee. Veeraswami, C. J. and K. N. Mudaliyar, J. delivering the judgment made it clear that the prayer would not come under any of the specific provision for refund enacted in the Court-fees Act; but they observed that under the inherent power of the court under Section 151, Civil P. C. a certificate would issue where the court felt that, in the interests of justice, it would direct a certificate to issue for the refund of the court-fee subject to deduction of the usual percentage. They referred to the previous cases. They also referred to the principle that court-fee is not a tax but only a fee. They accordingly wound up by saying that there will be a direction for the issue of the usual certificate for the refund of court-fee subject to the reduction of the normal spoliation charges.
3. The form which the learned Judges had in mind does not appear from the judgment and the office has not been able to trace the exact form of the certificate issued in that particular case. But I find that in a subsequent case C. M. P. No. 1009 of 1970 (Mad) in an unnumbered writ appeal S. R. 40053 of 1962 which was a similar case where the writ appeal had not been numbered but was settled out of court an order of refund was directed by Veeraswami, C. J. and on of us (Gokulakrishnan, J.) to the following effect:--
'Even before the writ appeal was numbered the matter was reported as settled out of court. That being the case, the appellant is entitled to a refund of the court-fee; subject of course, to the deduction of the spoliation charges at the usual rate'.
Actually I find that the certificate which was issued in that case did not stop with stating the facts that the appeal has not even been numbered and was not pressed at that stage but went further to state that the appellant was entitled to refund of the said court-fee of Rs. 100 subject, of course, to the deduction of the spoliation charges as usual. This the actual certificate issued by this court purported to hold that the appellant was entitled to refund of the court-fee which would mean that he was entitled, as a matter of right, to refund of court-fee. But stated in this form, I find that the certificate has gone beyond the precedents referred to in : AIR1971Mad136 .
4. The matter requires to be explained in some detail. In Thammayya Naidu v. Venkataramanamma : (1932)62MLJ541 , an appeal was preferred in a land acquisition matter. The District Judge has held on the reference under Section 18 of the Land Acquisition Act that a widow was entitled to a life interest in the compensation amount. The second claimant filed an appeal against that order to this court (A. S. 277 of 1929) and paid an ad valorem court-fee of Rs. 2332-7-0 on the amount of the award. He later realised that it was enough if a smaller court-fee of Rs 500 for a mere declaration was paid and prayed for the refund of the excess court-fee. The Bench of this court (Wallance, C. J. and Cornish, J.) upheld this contention that it was enough to pay a court-fee of Rs. 500 for the relief of declaration and that it was unnecessary to pay a larger court-fee because the amount was not immediately payable to the widow. It was argued that the refund of court-fee could be allowed only in cases covered by Section 13, 14 and 15 of the Court-fees Act of 1870; but they held that never the less the court had inherent power to order refund of court-fee paid in excess when obvious injustice would be done if it was not repaid. They observed-
'It would be unreasonable and unjust for the High Court not to assist a party to recover excess court-fee erroneously paid under its own order or under the orders of courts subordinate to it. Of course what the High Court really does judicially in such a case is to decide judicially what is the proper court-fee and then issue a certificate to the party that excess court-fee has been levied. It still lies with the revenue authorities to decide whether or not they will refund the excess in the circumstances. We direct that in this case the necessary certificate do issue'.
In Chidambaram Chettiar, In re, ILR 57 Mad 1028 = 1934 67 MLJ 321 = AIR 1934 Mad 556, the appeal was withdrawn because the appellant had got an amendment of the decree in the lower court and the opposite party did not press the revision petition filed against that order. The appeal was permitted to be withdraw. The appellant then asked for a refund of the court-fee. He admitted there was no section of the Court-fee Act on which he could rely. The learned Judges (Ramesam, J. and Curgenven, J.) observed in our opinion the court can order refund (i) where the Court-fee Act applies, (ii) where there is an excess payment by a mistake or (iii) where, on account of mistake of a court, a party has been compelled to pay court-fee either wholly or in part. Outside these cases we are not satisfied that we have authority to direct refund; we cannot direct a refund of the court-fees.
5. In Kappini Gounder, In re, 1937 2 Mad 788 = AIR 1938 Mad 67, the appeal was withdrawn as having been settled out of court. The appellant prayed for refund of the court-fee. The Bench (Venkatasubba Rao and Abdur Rahman, JJ.) after observing that Sections 13, 14 and 15 of the Court Fees Act of 1870 did not apply, posed the question-
'Then the question arises, has the court power to direct a refund of court-fee; independent of the express provisions of the Court-fee Act The courts have gone to the extent of holding that they can order a refund under their inherent powers, where an excess court-fee has been paid (i) by mistake of party, (ii) in obedience to a wrong order of court. The principle underlying these decisions, if we may say so with respect, is both good law and sound sense. But to go further and hold that a court-fee properly paid, can be refunded, would be to render nugatory, the express provisions of the Court-fees Act, for, what difference does it make in principle, between permitting a document to be filed originally without a court-fee and refunding the court-fee already paid in respect of it? It is elementary that no court has inherent power to do that which is expressly prohibited by statute.................In the result, the application is rejected with costs.'
We then come to the decision of Panchapakesa Ayyar, J. in Nagaratnam. In re, : AIR1950Mad629 . There the prayer was for refund of court-fee of Rs. 149-15-0 paid by the petitioner Nagaratnam in an unnumbered second appeal. The court returned the paper for filing the lodgment schedule receipt for Rs. 25 in two days. Nagaratnam did not file the lodgment schedule receipt at all. Instead, she negotiated with the other side, compromised with him, and settled the matter and represented the appeal with a petition claiming a refund certificate for the court-fee paid. The learned Judge referred to the decisions in : (1932)62MLJ541 and also the unreported decision of Leach, C. J. and Happell, J. in C. M. Ps. Nos. 4439 of 4442 of 1941 (Mad) in the identical matter where the learned Judges had refused to refund the court-fee. Following these authorities, the learned Judge held that the court could not make any order for refund but went on to observe-
'But it may be urged that this is a case of court-fee getting spoilt; without being used for an appeal, something like a stamp paper getting spoiled without being used for a document. Even if that is so, the petitioner's remedy, if any is not to apply for a refund certificate from the court, but to apply to the Government ex gratia and misericordia domini regis ('by favour' and 'by the mercy of our Lord the King'.) for a refund less the one anna in the rupee deductions as for spoilt stamp papers, if they are pleased to grant it. For this purpose alone, a certificate will be granted to the petitioner as requested by him, that the second appeal was not numbered or heard by this court and that the appeal memorandum has been stamped with a court-fee of Rupees 149-15-0 and that the court-fee stamps have been defaced by the High Court Office in the usual course of routine. I see no objection to granting a certificate to that effect under Section 151, Civil P. C. The Government will, of course, pass such orders as they like, after perusing this certificate, as it is wholly ex gratia and misericordia domini regis. The represented appeal memorandum which has not become unnecessary for retention in his court, will be, as requested by the petitioner, returned to him for prosecuting his ex gratia and misericordia domini regis application to the Government, if so advised'.
It seems to me that this was the first case where such a certificate was issued, leaving it to the executive authorities to issue refund or not. The above decision was followed by Ramaswami, J. in Krishnamurthi v. Krishnananda Mudaliar : (1958)1MLJ183 , where the appeal memorandum was not properly stamped. It was returned for payment of deficit court-fee. The appellant did not represent it as he found no necessity for it; and he asked for refund of the court-fee paid already. Ramaswami,, J. referred to : AIR1950Mad629 and observed-
'To my mind this procedure may be followed in this case also. The fact that it is not shown that the non-prosecution of the appeal here is not the result of compromise or settlement as in that case does not make any difference. If anything, refund is less justifiable when the appellant has got something by settlement by using the unfiled appeal as a means to extract some concession. The fact that the Legislature has thought fit to enact a provision of refund in the new Act in such cases indicated that in the opinion of the framers to the law refund in such cases is just and equitable (see Section 66(1) of the new Court-fees Act).'
6. The reference is to the Madras Court-fees and Suits Valuation Act, 1955. Section 66 (1) of the new Act definitely provides for refund of court-fee where the fee paid on a plaint or memorandum of appeal is deficient and the deficiency is not made good within the time allowed by law or granted by the court. It may be observed that though the appeal memorandum in : (1958)1MLJ183 was filed after the new Act came into force the provisions of the new Act were not applicable because Section 87 (2) says that where the suit or proceedings had been instituted before the commencement of the new Court-fees Act (which commenced on 19-5-1955), the provisions of the old Court-fees Act of 1870 would still continue to apply; and it will be noted that in the Act of 1870 there was no provision similar to Section 66 (1) of the Act of 1955. That was why Ramaswami, J. fortified his reasoning by observing that in the new Court-fees Act a specific provision under Section 66 (1) had been enacted to refund the court-fee already paid by a party who had not paid the deficit court-fee on the memorandum of appeal.
7. Ramaswami, J. followed the above decision of this in Mohan v. Balaram 1959 1 MLJ 110,. where the appeal was sought to be filed in forma pauperis but the appellant was asked to pay court-fee. He was not able to do so and hence prayed for refund of court-fee to the extent already paid. A certificate was granted observing-
'This is a fit case for the issue of refund certificate for enabling the petitioners to apply to the Revenue authorities for ex gratia refund as in the case of spoiled stamps as the appeal has not been numbered.'
Then there is an unreported judgment D/- 23-9-1963 of Ramachandran Iyer, C. J. and Ramakrishnan, J. in C. M. Ps. Nos. 3106 and 3940 of 1963 (Mad). The judgment dealt with the two appeals. In one case the appeal was filed when under the law no appeal lay. In the second the appeal was filed on a misapprehension as to the existence of an order which did not in fact exist. The two applications were filed for refund of the court-fee paid on the memorandum of appeal on the ground that the fee had been paid by mistake. Section 70 of the Court-fees Act of 1955 was invoked. The learned Judge did not accept that contention and observed:
'Section 70 of the Act will apply only to a case where the Court-fee itself has been paid by mistake, that it, where it had been paid when no court-fee is payable or when a larger fee amount has been paid while a smaller amount alone would be the proper fee.
In other words, the section applies only to a mistake or inadvertence in the payment of the court-fee and not to mistake in the initiation of proceedings on which the court-fee is paid in cases, where such court-fee would be proper fee if those proceedings were held to be properly laid.'
They went on to refer to the case in : AIR1950Mad629 and : (1958)1MLJ183 , where it was held that even in cases which were not covered by Sections 13 to 15 of the Court-fees Act, 1870, the court could issue a certificate to the party setting out the circumstances under which the court-fee stamps paid by him were not utilised by the court, thus leaving it to him to apply to the Government and obtain a refund if the Government were so pleased to grant it as an act of grace. They went on to observe:--
'The question is not a matter of any prestige of the court; for the Government seldom declines to honour such certificates. Discretionary as their power is to grant refund in such cases, it will still be a duty they owe to the public. Further the fact that the Government will not be bound to grant the refund cannot deprive the court of its inherent power of saying what has taken place here to enable the party to seek other remedies that he may have. If the Government chose not to grant a refund, it is not a matter with which this court is concerned, for, we do not direct it to grant the court-fee. We are therefore of opinion that it will be competent for this court in cases not covered by Sections 66 to 70 of the Madras Court-fees Act, 1955 to grant a certificate to the party as to the circumstances under which the stamps came to be defaced. There will be no direction accompanying such certificate compelling the Government to make any refund either of the whole or part of the fee. It will, however, be open to the party to obtain this certificate and approach the Government for such relief as it may deem fit to grant in all the circumstances of the case. We accordingly direct the Registrar to issue a certificate stating the circumstances under which the court-fee stamps in the instant case came to be spoiled'.
8. We find that (in C. M. P. 3106 of 1963 (Mad) the certificate was issued by the Registrar to the following effect-
'I do hereby certify that court-fee stamps of the value of Rs. 100 (Rs. one hundred) only have been paid in the said S. R. 28236 appeal under clause 15 Letters Patent sought to be preferred against the judgment of this court dated 29-6-1962 and passed in A. A. O. No. 142 of 1960 and that the Letter Patent Appeal has not been numbered or heard by this court and that the said court-fee stamps of the value of Rs. 100 (Rs. one hundred only) have been punched and cancelled and have been duly defaced by the office of the Registrar of this court.'
In Smt. Periathayya v. Narasinga Rao : AIR1966Mad423 a suit was filed by a landlord to evict the tenant when the provisions of the Madras Act 18 of 1960 were in force. The suit was competent then, but the suit abated by virtue of the later amendment by Madras Act 11 of 1964. The plaintiff prayed for refund of court-fee under those peculiar circumstances. Veeraswami, J. (as he then was) reiterated the principles laid down in : AIR1934Mad566 and observed:
'It follows, that this court has a limited power to order refund, in exercise of its inherent power under Section 151. Civil P. C. but it does not extend to cases other than the instance mentioned in Chidambara Chettiar, In re.'
The learned Judge went on to refer to the decision of Panchapakasa Ayyar, J. in : AIR1950Mad629 and observed-
'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 felt that in that particular case refund of one half of the court-fee was reasonable and observed-
'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 XI of 1964 has abated and could not be prosecuted by the petitioners, and one half of the court-fees may reasonably be refunded after proportionate deduction at ten pais a rupee.' It will be seen that even on the above decision it was not directed that the certificate should say that the petitioner was entitled to a refund of the whole or any part of the court-fee. It was recognised that was undoubtedly in the discretion of the Government to grant refund or not. I find from the stockfile mentioned by the office of the court that the certificate which was issued in a number of cases to the parties was also very limited in form already indicated in C. M. P. No. 3106 of 1963 and 3940 of 1963 (Mad). For the first time a certificate adding the words that the appellant is entitled to refund of the court-fee appears to have been ordered only in : AIR1971Mad136 and C. M. P. No. 1009 of 1970 (Mad).
9. For the sake of completeness I may refer to the decision of Ganesan, J. in Factors (P) Ltd. v. Amalgamated Commercial Traders (P) Ltd., (1970) 83 MLW 109. There the petitioner filed a suit O. S. 4105 of 1965 for recovering a sum of Rs. 3500 paying court-fee of Rs. 263. The defendant contended that the suit was not maintainable. The petitioner had already filed a suit O. S. 301 of 1964 including the claim of Rs. 3,500. Mentioning that fact he withdrew O. S. 4105 of 1965 and prayed for refund of the court-fee of Rs. 263. The learned Judge reviewed the case law and held that he was not entitled to refund or even the limited certificate enabling the party to get refund from the Government ex gratia. So far as the actual decision of the case goes, no exception could be taken. But I should not be understood as agreeing with the observations there in particular that after the enactment of the Court-fees Act of 1955 the court has no inherent power to order refund. That will be correct so far as the mistake or inadvertence or act of the party is concerned; outside Sections 66 to 70 of the Act he cannot ask for refund. But when he pays court-fee in excess as a result of the wrong order of the court the position is different. Section 12 (4) (d) envisages a case of the court of appeal directing refund of the excess court-fee paid as a result of the wrong order of the lower court. But cases may arise outside Section 12 (4) (d); for instance, the court, on a review of its earlier decision, may hold that a similar court-fee is sufficient. Justice would require the court to order refund in such a case also. Such cases any be dealt with as they arise.
10. It also seems to me, with great respect to Ganesan, J., that the criticism of the judgment of Venkatasubba Rao, J. in Ramakrishnayya v. Seshamma, : AIR1935Mad346 is not justified. There the reversioner filed a suit attacking some alienations made by a Hindu widow. The widow set up a will of her husband. The reversioner attacked the will. He paid court-fee for a declaration in regard to the will. Subsequently he obtained a surrender of the estate from the widow and with the leave of the court converted the suit into one for possession, paying a larger court-fee paid on the relief of possession. He then applied for a refund of the court-fee paid on the relief of declaration in regard to the will on the ground that when the larger court-fee had been paid the smaller court-fee was unnecessary. Venkatasubba Rao, J repelled this prayer and observed that there is no force in this contention. As the plaint originally stood, the plaintiff rightly considered the relief relating to the deed as essential. The fact that by his having altered the suit and claimed a higher relief, the prayer relating to the will has become since unnecessary can make no difference whatsoever.
With reference to this, Ganesan, J. observe 'With great respect, to the learned Judge, the proper question which should have been posed was whether court-fee paid was really payable or not under the provisions of the Act VII of 1870 on the relief relating to the declaration in respect of the will; and the question did not depend upon the opinion of a plaintiff about the necessity of the reliefs in a suit; and if the view of the learned Judge has to prevail, it would be open to a plaintiff to give up a relief at a subsequent stage as being unnecessary and to claim refund on the ground that he and mistakenly though at the time of institution of the suit that the relief was essential.' It will be noticed that the reasoning of Venkatasubba Rao. J. is precisely that it would not be open to the plaintiff to give a relief and claim refund.
11. In view of the fact that for nearly 20 years a certificate has been issued on cases similar to the present but confirmed to a statement of the facts without any recommendation or expression of opinion that the appellant is entitled to a refund of the court-fee such a limited certificate may and should be issued in this case also; but, for my part, I think it would not be right to go further and incorporate any opinion or direction that the appellants are entitled to a refund of court-fee of a portion thereof. Once it is recognised that it is entirely within the discretion of the Court (Collector ?) to grant refund or not. I think it would not be proper for this court to express any opinion on that point. But it is unnecessary to pursue the matter further because Sri Balakrishnan appearing for the petitioners is content with a certificate in the limited form in which it was usually issued, merely stating that a court-fee of Rs. 200 was affixed to the appeal memorandum and that before it was numbered the appeal was settled out of court and permission was granted to withdraw the appeal. There would be no expression of opinion whether the petitioners are entitled to a refund of the court-fee.
12. I agree with the order passed by my learned brother (Venkataraman, J.) for the issue of a certificate in favour of the petitioners in this Civil Miscellaneous Petition.
13. Order accordingly.