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Kumud Nath Das Saha and ors. Vs. Government Pleader - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal347,163Ind.Cas.222
AppellantKumud Nath Das Saha and ors.
RespondentGovernment Pleader
Cases ReferredJagdesh Chowdhury v. Radha Dubey
Excerpt:
- .....that the present case falls outside the provisions of those sections. from the authorities of different high courts it appears clear that high courts should interfere under section 151 in such a case as this where obvious injustice has been done. we may refer to the case of harihar guru v. anando mahanty (1913) 40 cal 365 which again makes a reference to the very early case in the matter of grant (1870) 14 w r 47. we have next the decision of the patna high court in the case of chandradari singh v. tippon prasad singh 1918 pat 496, which takes the same view. there is also a decision of the madras high court in the case of c. thamayya naidu v. c. venkataramanamma 1932 mad 438, to the same effect. another decision which favours the exercise of inherent jurisdiction is to be found in the.....
Judgment:

D.N. Mitter, J.

1. This Rule was issued on the learned Senior Government Pleader of this Court to show cause why the prayer of the petitioner asking for refund of the excess court-fees should not be granted to the petitioner or such other order or further orders made as to this Court may seem fit and proper. It appears that the petitioners who were the plaintiffs instituted a suit for enhancement of rent under the provisions of Section 7, Ben. Ten. Act, and they paid court-fees both in the Court below as in this Court on the amount which was claimed on the basis of enhancement of rent. They did not pay court-fees on the difference between the original rate of rent and the enhanced rent claimed. It now appears from a decision in Prosannadeb Roikat v. Purna Chandra Saha 1934 Cal 674 that a suit for enhancement of the rent of a tenure, there being no prayer for recovery of rent for any period would be governed by Article 1, Schedule 1, Court-fees Act, and the court-fee payable on the plaint would be on the difference between the rate claimed and the rate paid before and the fee payable on the memorandum of appeal would be on the difference between the rate claimed and the rate allowed by the Court below.

2. Having regard to this decision it appears that the plaintiffs paid in the Court below as well as in the memorandum of appeal an aggregate sum of Rs. 585 in excess of the sum payable in view of the decision of Mukerji, J., just referred to. The appeal in connexion with which this Rule arises was disposed of by us on 11th April 1935 'and on the same date Mr. Bagchi appearing for the petitioners made an application asking that his client should be allowed a refund of the excess sum paid. We accordingly asked the Senior Government Pleader to show cause why the prayer of the petitioners should not be granted. Dr. Mukerji, the Junior Government Pleader, has appeared to show cause. He does not dispute the position that according to this decision the plaintiffs petitioners have paid an excess sum of Rs. 585 in court-fees, but what he contends is that this is not a case in which we should exercise our powers of inherent jurisdiction under the provisions of Section 151, Civil P. C. A number of authorities have been referred to at the bar which would go to show that in cases which are not governed by any express provisions of the Act the Court can direct a refund under Section 151 if obvious injustice has been done.

3. We shall presently refer to those cases. The provisions which entitle a party to a refund of court-fees which are expressly mentioned in the Court-fees Act are those contained in Sub-section 13, 14 and 15 of the Act. It is admitted that the present case falls outside the provisions of those sections. From the authorities of different High Courts it appears clear that High Courts should interfere under Section 151 in such a case as this where obvious injustice has been done. We may refer to the case of Harihar Guru v. Anando Mahanty (1913) 40 Cal 365 which again makes a reference to the very early case In the matter of Grant (1870) 14 W R 47. We have next the decision of the Patna High Court in the case of Chandradari Singh v. Tippon Prasad Singh 1918 Pat 496, which takes the same view. There is also a decision of the Madras High Court in the case of C. Thamayya Naidu v. C. Venkataramanamma 1932 Mad 438, to the same effect. Another decision which favours the exercise of inherent jurisdiction is to be found in the case of Mohammad Sadiq Ali v. Ali Abbas 1933 Oudh 170. It is true that there is a subsequent decision of the Patna High Court in the case of Jagdesh Chowdhury v. Radha Dubey 1928 Pat 35, where it was held that the inherent power of the High Court in such cases should be exercised with caution and not in every case.

4. We have however examined the facts of that case and the circumstances were very different there. In those circumstances Dawson-Miller, C. J., who laid down the principle in the earlier Patna case refused to exercise the inherent power. In the present case it appears clear that the applicants paid a large -sum in excess of what is leviable from them. Having regard to the decision of Mukerji, J., which decision goes in their favour we direct that the taxing officer who is the Registrar on the Appellate Side of this Court may issue the necesary certificate to the petitioners so that they may get a refund of Rs. 585 which have been paid in excess by them in court-fees.

Rau, J.

5. I agree.


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