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indu Bhusan Roy Choudhury Vs. Secy. of State - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal707,159Ind.Cas.443
Appellantindu Bhusan Roy Choudhury
RespondentSecy. of State
Cases Referred and Sasi Bhusan Majumdar v. Manik Lal Chandra
Excerpt:
- .....in i.l. r thammyya naidu v. venkataramanamma, 1982 mad 438. in that case the petitioner had paid excess court-fees. the learned judges held that it would be unjust and unreasonable for the high court to refuse to assist him to recover them and granted him a certificate to the effect that excess court-fees had been paid leaving it to the revenue authorities to decide whether a refund should be made or not. with that decision i respectfully agree. i am not prepared to say that the particular form of certificate provided for in sections 13, 14 and 15, court-fees act, ought to be granted in cases which are altogether outside the scope of the act. i should therefore be prepared to grant the petitioner a certificate to the effect that he ought to be granted a refund provided that he.....
Judgment:

Henderson, J.

1. This is a Rule obtained by the petitioner calling upon the Secretary of State for India in Council to show cause why the petitioner should not be granted a certificate authorizing him to receive back from the Collector a certain sum paid as court-fees on a plaint. The facts which require to be noted are as follows: The petitioner is the common manager of a certain estate in the district of Bakargunj. His predecessor instituted a suit for rent in the Court of the Subordinate Judge at Khulna: the plaint was insufficiently stamped; several adjournments were granted in order to enable the plaintiff to pay the deficit but eventually the plaint was rejected on 20th July 1933. Then on 13th March 1934 the petitioner applied to pay the deficit court-fees and he was given five days within which to do so. The Subordinate Judge then restored the suit to the file, purporting to act under Section 151, Civil P.C. One of the defendants then obtained a rule from this Court, which was eventually made absolute it being held that the petitioner's proper remedy was by way of appeal and that the Subordinate Judge's order was passed without jurisdiction: it was accordingly set aside. The petitioner then obtained this Rule and asks us to give him a certificate authorizing him to receive back from the Collector the whole sum which was paid on account of court-fees.

2. Prom what has been said above it is clear that the petitioner is not entitled to any relief under the provisions of the Court-fees Act. But we are asked to grant a certificate under the inherent jurisdiction which is preserved to Courts under Section 151, Civil P.C. On behalf of the opposite party Dr. Basak has contended firstly that the Courts have no such power in relation to a refund of court-fees and secondly that the facts of the present case do not entitle the petitioner to any relief. I should certainly not be prepared to hold that the Courts have no jurisdiction to grant relief in suitable cases, though there may be some doubt as to the precise form which the relief ought to take. This matter was considered by the Madras High Court in the case reported in I.L. R Thammyya Naidu v. Venkataramanamma, 1982 Mad 438. In that case the petitioner had paid excess court-fees. The learned Judges held that it would be unjust and unreasonable for the High Court to refuse to assist him to recover them and granted him a certificate to the effect that excess court-fees had been paid leaving it to the revenue authorities to decide whether a refund should be made or not. With that decision I respectfully agree. I am not prepared to say that the particular form of certificate provided for in Sections 13, 14 and 15, Court-fees Act, ought to be granted in cases which are altogether outside the scope of the Act. I should therefore be prepared to grant the petitioner a certificate to the effect that he ought to be granted a refund provided that he could persuade us that his petition has any merit in it.

3. The reported cases generally deal with petitions for a refund of court-fees, which have been improperly levied. The present case is not one of that character and it is not even suggested that the court-fees paid were improper. The only ground upon which the prayer for a refund is based is that the suit was not tried out. I would understand a principle by which an unsuccessful plaintiff or appellant should be held entitled to a refund of court-fees on the ground that he gained no benefit by the litigation. Mr. Sen did not even contend that we ought to give effect to any such principle. But if we are to stop short of that, we should find it difficult to draw the line anywhere with any show of reason. In the present case 'we are asked to grant relief to a litigant who failed because he did not follow the correct procedure. If we were to do that, it would be difficult to refuse relief to a litigant who failed on any preliminary ground. It would then be difficult to resist the conclusion that mere failure was in itself a sufficient ground for a refund. The result is that in my opinion relief ought not to be granted under Section 151, Civil P.C., in cases where the proper court-fees have been paid. We were asked by Mr. Sen to make this Rule absolute on the authority of the case reported in Gastaun GC v. Janaki Nath, 1934 Cal 615. The facts are these: The petitioner filed an appeal to this Court out of time. He filed an application for extension of time under Section 5, Lim. Act, and obtained a rule on the opposite party, which was eventually discharged. He then applied under Section 151, Civil P.C., for a certificate authorising a refund and was successful. With great respect to the learned Judges, who decided that case it is clear that, if the view which 1 have taken is correct, that case was wrongly decided. I should therefore have desired to refer the matter to a Full Bench, if the facts in the present case had been similar. But as the cases are clearly distinguishable, it is not necessary to do so. We accordingly discharge this rule with costs hearing fee one gold mohur.

Nasim Ali, J.

4. I agree. The present application admittedly is not covered by Sections 13, 14 and 15 of the Court-fees Act. We are asked however to issue a certificate under the inherent power of the Court. The learned Senior Government pleader contends that the Court has no power to issue certificate apart from the provisions of the Court-fees Act. The reported cases however show that this Court as well as other High Courts have issued certificate under the inherent power of the Court in cases (1) where excess court-fees have been paid by inadvertence: Ameeroonissa Bibi v. Woomaroodin Mohamad (1870) 14 WR 49, Harihar Guru v. Ananda Mahanty (1913) 40 Cal 365 and In the Matter of Manns Lal, 1930 All 471. (2) Where a litigant has made excess payments under an erroneous view of the provisions of the Court-fees Act: Thammyya Naidu v. Venkataramanamma, 1982 Mad 438, Vijyalakashmi Ammal v. Srinivasa Ayyangar, 1934 Mad 84, Chandra Hari Singh v. Tipan Prosad Singh, 1918 Pat 496 and Muhammad Reza v. Rajballabh Nath Singh (1928) 107 IC 320. (3) Where the Court has realized excess court-fees on an erroneous interpretation of the section of the Court-fees Act: Girish Chandra Mali v. Girish Chandra Dutta, 1932 Cal 450 and Sasi Bhusan Majumdar v. Manik Lal Chandra (1928) 107 IC 825. The principle underlying these cases seems to be that Government should not profit by the mistake of a litigant or of a Court as to the amount of court-fees payable under the Court-fees Act, and in cases of such mistake the Court should order refund for ends of justice. This is an intelligible principle. Government cannot reasonably object to refund the excess as it is not legitimately due under the statute.

5. The present case does not come within the principle. There is one reported case however, 38 CWN 185 (2), in which this Court issued a certificate for refund of court-fees paid on a memorandum of appeal presented to this Court out of time on the ground that the delay in filing the appeal was not due to any negligence on the part of the appellant but to some gross negligence on the part of his legal adviser. The facts of the present case are not similar to the facts of that case. Further that case has gone beyond the principle referred to above. Section 151, Civil P.C., does not confer new power on the Court. It simply saves the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court in cases and circumstances which are not covered by the express provision of the Code, which deals only with procedure and not with substantive rights and obligations. By the exercise of inherent power the Court cannot exonerate a litigant from an obligation imposed upon him by the Statute. Under Section 6, Court-fees Act, no plaint or memorandum of appeal can be filed in Court unless the fee prescribed by the Act for such document is paid. When a plaint is filed out of time under Order 7, Rule 6 the plaintiff is entitled to show the ground upon which he claims exemption from the law of limitation. When an appeal is presented out of time the appellant explains the delay and the Court may excuse the delay if he can make out a case under Section 5, Limitation Act. Whether the suit or the appeal will be entertained or thrown out on the ground of limitation will depend upon the decision of the Court.

6. But the condition precedent of the filing of the suit or the appeal is that the fees prescribed by the Court-fees Act must be paid. The Statute is not at all concerned with the question of the success or failure of the litigant. Under the inherent power of the Court, it cannot exempt a litigant from the statutory obligation to pay the prescribed fees. If the litigant is made to pay fees in excess of what he is liable to pay under the Statute, the Statute does not stand in the way of refunding such excess fees as it never authorised the receipt of such excess. In such cases the litigant has got the right to get a refund because the excess is his money and has by mistake or inadvertence passed into the hands of Government. Under such circumstances the only question is about the procedure for the enforcement of such right, and the Courts have rightly assumed jurisdiction under the inherent powers to give relief to the litigant. But where a litigant has paid fees which he was bound to pay under the law for his plaint or memorandum of appeal, the Court by ordering refund under the inherent power cannot indirectly exempt him from the obligation imposed upon him by the Statute and thereby nullify the provisions of Section 6, Court-fees Act. The legislature however has made certain exemption and these are to be found in Sections 13, 14 and 15, Court-fees Act. Under the circumstances with great respect to the learned Judge who decided Galstaun's case (2) I am inclined to think that the issue of certificate for refund in that case was not warranted by law.


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