S. Ganesan, J.
1. This revision petition is directed against the order dated 26th October, 1966, passed by the Fourth Assistant Judge, City Civil Court, Madras in I.A.No. 5107 of 1966. The application before the Fourth Assistant Judge, City Civil Court, was filed under Section 70 of the Madras Court-fees and Suits Valuation Act, 1955, for refund of the Court-fees under the following circumstances. The petitioner herein filed O.S. No. 4105 of 1965 for recovering a sum of Rs. 3,500 from the defendant as dividend due to him and paid a Court-fee of Rs. 263 in respect of the said claim. On the contention of the defendant that the suit was not maintainable, as the petitioner had already filed a comprehensive suit, O.S. No. 301 of 1964 including the claim for Rs. 3,500 the petitioner made an endorsement on the plaint to the effect that the suit O.S. No. 4105 of 1965 had been filed by mistake or inadvertence, that he may therefore be permitted to withdraw the suit without prejudice to his contentions in the earlier suit, O.S. No. 301 of 1964 and that the Court-fee paid by mistake or inadvertence may be ordered to be refunded.
2. The Fourth Assistant Judge had dismissed the application on the ground that payment of the Court-fee in the suit was not by any mistake or by any inadvertence and that the mistake or inadvertence was with reference only to the filing of the suit in question. Hence the revision.
3. In Chidambaram Chettiar, In re (1934) 67 M.L.J. 321 : I.L.R. 57 Mad. 1028, a Division Bench of this Court had, while dealing with a case under the old Court-fees Act (VII of 1870) observed that Courts can order, refund only in three cases--(1) where the Court-fees Act applied, (2) where there is an excess payment by mistake and (3) where on account of a mistake of Court a party has been compelled to pay the Court-fees either wholly or in part; and that outside these cases the Courts have no authority to order a refund. The refund of Court-fee on account of excess payment by mistake on the part of a party or a mistake of the Court was ordered by Courts in exercise of their inherent powers.
4. Under the present Madras Court-fees and Suits Valuation Act (XIV of 1955), however, Section 70 had been specifically enacted for dealing with cases of refund of fee paid by mistake or inadvertence of a party to the suit. Section 70 of the Act provides that the Court-fee paid by mistake or inadvertence shall be ordered to be refunded.
5. I shall now refer to some of the decisions relating to mistake under the old and the new Madras Court-fees Act. In Thimmayya Naidu v. Venkataramanamma I.L.R. (1932) 55 Mad. 641 : 62 M.L.J. 541, this Court upheld the plea of bona fide mistake and purporting to act under its inherent powers ordered the issue of a certificate recommending refund in a case where a party in an appeal to the High Court under the Land Acquisition Act paid in the first instance ad valorem Court-fee on the amount of the award, when a lesser Court-fee was payable, if the relief was treated as one for a mere declaration. This Court upheld the plea that he had paid excess Court-fee erroneously.
6. In Chidambaram Chettiar, In re (1934) 67 M.L.J. 321 : I.L.R. 57 Mad. 1028, already cited, this Court refused the request for refund in a case where the appeal was dismissed as withdrawn. The learned Judges disapproved of the decision of the Calcutta High Court in Galstaun v. Raja Janakinath Roy 38 C.W.N. 185, where refund was ordered in a case where the appeal which was barred by limitation was filed late because of mistaken legal advice.
7. In Ramakrishnayya v. Seshamma : AIR1935Mad346 , this Court, while dealing with a case under the old Act VII of 1870, rejected the claim for refund in the following circumstances. The reversioner filed a suit against the widow and other alienees challenging the genuineness of a will left by the deceased, conferring absolute title on the widow and the alienees. The suit was one for declaration, but subsequently he obtained a surrender from the widow, converted the suit into one for possession and asked for refund of Court-fees in respect of the relief relating to the declaration of the will, claiming that this relief has since become unnecessary as a result of the surrender, he had obtained from the widows. The Court observed that, as the plaint originally -stood, the plaintiff rightly considered the relief relating to the will as essential and that 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 great respect to the learned Judge, the proper question which should have been posed was whether Court-fees 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 relief in a suit. 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 had mistakenly thought at the time of institution of the suit that the relief was essential.
8. In Kappini Gounder, In re : AIR1938Mad67 , a Bench of this High Court refused to order refund in exercise of its inherent powers when the appeal was dismissed as withdrawn having been settled out of Court. The learned Judges observed that, while a refund was permissible in the case of a mistake of a party, or in case of a wrong order of Court the inherent power should not be exercised in a case where Court-fee had been properly paid. If the Court-fee properly paid is refunded that would render nugatory the express provisions of the Court-fees Act and that it is elementary that no Court has inherent power to do that which is prohibited by statute.
9. In Tej Bahadur v. Pearelal A.I.R. 1967 All. 734, the Allahabad High Court declined to grant a certificate when the second appeal which was found not entertainable was permitted.
10. In Yandra Brahmam, In re (1957) 1 A.W.R. 167, the Andhra High Court while dealing with Section 66 of the Andhra Court-fees and Suits Valuation Act (VII of 1956) which is practically identical with Section 70 of the Madras Court-fees Act, 1955, refused to accept the contention that a mistake which lay in the choice of the remedy and which consequently resulted in the payment of Court-fee must also be regarded to be the result of mistake or inadvertence. The learned Judges observed that Section 66 of the Andhra Court-fees Act had nothing to do with a mistake in the selection of the remedy but related only to cases where the mistake had been committed in payment of Court-fee, i.e., where payment has been made though it is not due or the Court-fee has been paid in excess. In that instance a writ petition was filed by mistake.
11. In the unreported decision of a Division Bench of this Court in Ambubai Kalidas Pie. Ltd. v. Shah Hirachand Shamji C.M.P. Nos. 3106 and 3940 of 1963, Section 70 of the Madras Court-fees Act came up for direct consideration. In the first of two cases dealt with in that judgment, an appeal was filed when under the law no appeal lay, and in the second appeal was filed on a misapprehension as to the existence of an order which did not in fact exist. In both the cases there was no mistake in regard to the Court-fee that was paid on the memorandum in the sense that the amounts paid were other than what would be payable under the provisions of the Madras Court-fees Act; and the contention was that there was a bona fide mistake in filing the appeals themselves, as under the law, such appeals were not competent. While rejecting the plea for a refund on the ground of mistake, Ramachandra Iyer, C.J., who delivered the judgment on such payment is really consequent on the mistake in conceiving that the proceedings lay where none exist under the law.
12. The law on the subject is thus fairly clear. In order to claim a refund of fee paid by mistake or inadvertence, under Section 70 of the Court-fees Act, 1955, the party must, in the first place, establish that no Court-fee was payable at all by him or that excess Court-fee had been paid. In the second place, he must go further and establish that the payment was due to his mistake in thinking that the amount paid as Court-fee was really payable under the provisions of the Court-fees Act. Where, however, the payment had been made out of a mistake on his part in the choice of a remedy no refund can be claimed, as the payment evidently has not been made due to any mistaken belief that the same was really due under the Court-fees Act. It is also open to him to establish that the payment was due to his inadvertence, in. other words that he had wrongly paid the Court-fee by oversight or negligence.
13. It also appears to be clear that, after the enactment of the Madras Court-fees and Suits Valuation Act, 1955, there is really no scope at all for the exercise of inherent powers by Courts to order refund of Court-fees. As I have already observed, this Court has in Chidambaram Chettiar, In re (1934) 67 M.L.J. 321 : I.L.R. 57 Mad, defined the scope of the exercise of inherent powers in regard to refund of Court-fee paid and had clearly restricted the same to only two cases i.e., excess payment made by mistake of party and excess payment as a result of a mistake of Court. Admittedly cases of payment by a party as a result of mistake or inadvertence are now specifically covered by Section 70; and Section 12 (4) of the Act XIV of 1955 provides that the appellate Court is bound to order a refund of the excess Court-fee when it reduces the Court-fee fixed by the trial Court. The provisions of Section 12 (4) evidently do not appear to have been brought to the notice of Rajagopalan, J., in the case reported in Rathinavel v. Natchiappa (1959) 2 M.L.J. 24, wherein he had observed that, while dealing with a case where the appellate Court reduced the fees determined by the trial Court, Section 70 would govern such cases of mistake also, the mistake being that of the lower Court which was rectified by the appellate Court.
14. The only exception where the Court will exercise its inherent powers relates not to cases of refund but only to cases where the doctrine of unjust enrichment can be successfully invoked by a party. Where the application, suit or appeal had not been registered or numbered and consequently not heard by the Court, but stamps had been defaced by the officers of Court, and if the proceedings are withdrawn by the party before the Court would take any action, it can be legitimately contended that the Court-fee paid was not used at all and that the State had not expended any time or labour in disposing of the matter; and it would be open to the Court in such cases to issue a certificate setting forth those circumstances for enabling the party to obtain refund of the Court-fee. Inherent powers are exercised by Courts in such cases with a view to avoid obvious injustice; and it would be open to the Government to order refund as an act of grace, acting under Section 81 of Act XIV of 1955, on an application by the party who produced the certificate. This view had been endorsed by the Division Bench of this Court in the unreported case cited supra.
15. In the present instance, it is not disputed that the Court-fee paid on the suit O.S. No. 4105 of 1965 was payable under the provisions of the Court-fees Act and that the suit had been withdrawn as unnecessary only on the contention of the defendant that the suit was not maintainable, as the petitioner herein had already filed a comprehensive suit O.S. No. 301 of 1964 including the claim for Rs. 3,500 covered by the suit O.S. No. 4105 of 1965. It is obvious that the mistake lay in the institution of an unnecessary suit and not in the payment of Court-fees.
16. The learned Counsel for the petitioner strongly relies on the decision of Ramachandra Iyer, J. (as he then was) in Zahoorunnissa Begum v. Mohamed Ali (1961) 2 M.L.J. 331 in which it was held that Section 70 of the Act would cover a mistake which arises as a result of the adoption of an erroneous procedure. In that case a suit was filed by mistake in a case which requires only a petition under Section 47, Civil Procedure Code, and on objection by the respondent the party was permitted to convert it into an application under Section 47, Civil Procedure Code, which involved a lesser Court-fee. This judgment was subsequently considered by Ramachandra Iyer, J. and Ramakrishnan, J., in the unreported decision cited supra, and the Division Bench approved of this case by observing that that was a case where, although the proceedings were initiated as a suit, what the party intended to file was really with respect to certain matters arising in execution of a decree which in certain circumstances can be made by an application and in certain others only by a suit and that the fact that the proceedings were called a suit, cannot alter its essential nature.
17. With great respect I regret that I am unable to follow the decision in Zahoorunnissa Begum v. Mohamed Ali (1961) 2 M.L.J. 331. In that case the suit was converted into an application with the permission of the Court, as the suit was not the appropriate remedy and was not maintainable under the circumstances, and it is not suggested that the Court-fee paid on the suit as framed was not really due or had been paid in excess under the provisions of the Court-fees Act. As rightly pointed out by the Andhra High Court in Yandra Brahmam, In re (1957) 1 A.W.R. 167, a mistake in the choice of remedy cannot be equated with the wrong payment of Court-fee due to mistake or inadvertence. The mistake in the choice of procedure, in my view, is entirely different from a mistake in the payment of Court-fees and is not covered by Section 70 of the Court-fees Act. The mistake in that case did not lie in thinking that excess Court-fees was really due on the suit under the provisions of the Court-fees Act. The said decision, in my view, does not appear to be correct and, in any event, must be confined to the facts of that case.
18. In any event, I am clear that the petitioner cannot succeed on the strength of the said decision. Admittedly there is no mistake of procedure here and the mistake lay in filing a suit which was obviously unnecessary in view of the institution of a comprehensive suit earlier.
19. In the result, this civil revision petition is dismissed; but under the circumstances, without costs.