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Padam Chand and ors. Vs. Ram Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. No. 2 of 1951
Judge
Reported inAIR1951HP73
ActsCourt-fees Act, 1870 - Sections 10(1) and 13 to 15; ;Code of Civil Procedure (CPC) - Order 41, Rule 23
AppellantPadam Chand and ors.
RespondentRam Lal
Appellant Advocate Thakur Das, Adv.
Respondent Advocate Tek Chand, Adv.; Bakshi Sita Ram, Govt. Adv.
DispositionApplication rejected
Cases ReferredChockkalingam v. Maung Tin
Excerpt:
- .....while remanding the case ordered that costs will abide the result. had the suit been dismissed on remand the applicants would have become entitled to recover the court-fee in question as part of their costs from the plaintiff. and the applicants took a chance in awaiting the result of the retrial to see if they could avail themselves of the benefit of that order. it was only after the retrial had again ended in a decree being passed against them that they filed the present application for a certificate of refund of court-fee along with their appeal against the judgment and decree of the trial court. this conduct of the applicants clearly disentitles them to the exercise of discretion in their favour.9. the application is rejected, and the applicants will pay rs. 15 as costs to the.....
Judgment:
ORDER

Chowdhry, J.

1. This is an application by Padam Chand and his brothers under Section 13, Court-fees Act, read with Section 151, Civil P. C., for a certificate for refund of court-fee.

2. The application has been opposed by the learned Government Advocate.

3. The applicants were sued for recovery of an amount on foot of a pro-note, and the suit was decreed by the Senior Subordinate Judge on 29-11-1948. That Court passed the decree after recording findings on all the issues in the case, including one relating to the alleged discharge of the debt. The applicants filed an appeal to this Court and it was argued on their behalf that they had not been given an opportunity to adduce evidence upon the said issue relating to satisfaction and discharge of the debt. My learned predecessor-in office, without recording any findings, framed three additional issues and by his order dated 4-7-1949 remanded the entire case for re-decision on merits on the old as well as the new issues. The costs were ordered to abide the result of the suit. The trial Court again passed a decree in full against the applicants on 17-1-1951. Against that judgment and decree the applicants have again come up in appeal to this Court, and they have at the same time filed the present application for refund of court-fee on the memorandum of appeal (First Appeal No. 100 of 1949) which resulted in the passing of the said order of remand dated 4-7-1949.

4. It was argued by the learned Government Advocate that as there is nothing in the order of this Court dated 4-7-1949 granting to the applicants a certificate as provided by Section 13, Court-fees Act, it should be deemed that this Court had disallowed the refund. From the mere fact of the absence of any order on the point it cannot, in my opinion, be concluded that my learned predecessor-in-office disallowed refund of court-fee. It only appears that his mind was not directed towards this question. It follows therefore that the order of my learned predecessor is no bar to the disposal of the present application on merits.

5. The first question that arises is whether the said order of remand was one under Order 41, Rule 23, Civil P. C., for, if the answer to this question be in the affirmative, there is no doubt but that the present application must be granted under the mandatory provisions of Section 13, Court-fees Act, Now, as already stated, the trial Court's-decree dated 29-11-1948 was passed on foot of findings recorded on all the issues that arose from, the pleadings of the parties. It may be stated here in this connection that the issues framed by my learned predecessor-in-office and remitted to the trial Court by the said order of remand did not strictly arise on the pleadings of the parties but were framed on the basis of the arguments had before him in appeal. It cannot therefore be said that the trial Court had disposed of the suit upon a preliminary point within the intendment of Order 41, Rule 23, Civil P. C. It follows, therefore, that the remand was not one under that rule. Nor was it a remand under Rule 25 since the entire case was ordered to be decided afresh by the trial Court. The remand therefore appears to have been made ex debito justitiae under the inherent power of this Court. It was argued by the learned counsel for the applicants that a refund of court-fee is permissible, even where a remand is made under the inherent powers of the Court, and in support of this contention he cited the following rulings: Mt. Gendo v. Radhe Mohan, A. I. R. (19) 1932 Lah. 219; Firm Hari Ram & Sons v. H.O. Hay, A. I. R. (26) 1939 Lah. 257; Indu Bhusan v. Secretary of State, A. I. R. (22) 1935 Cal. 707; Vishnunambudiri v. Ramunni, A. I. R. (27) 1940 Mad. 208 and Mutyalamma v. Krishnamma, A. I. R. (32) 1945 Mad. 351.

6. The last named ruling in 1945 Mad. 351 does not support the applicants' contention since the order of remand in that case wag interpreted as having been passed finder Order 41, Rule 23. Nor has the other Madras case any relevancy because that was a case of refund of excess court-fee. In. A. I. R. (19) 1932 Lah. 219, the question of refundability of court-fee was neither directly in issue nor adjudicated upon, but the fact of the lower appellate Court having made an order of refund was taken into consideration in arriving at the conclusion that the order of remand in the course of which the refund was allowed had been passed under Order 41, Rule 23, Civil P.C. A. I. R. (22) 1935 cal. 707 was wrongly supposed by the learned counsel for the applicants as supporting him, for, in fact, it supports the opposite view. The only authority cited by- the learned counsel for theapplicants which might in some way be said to support his contention is that reported in A. I. R. (26) 1939 Lah. 257. In that case retrial was ordered because there had been no real trial of the main issues involved in the case, and while remanding the case the appellants were allowed a refund of court-fee on the memorandum of appeal. It was held, following Mohammad Sadiq Ali Khan v. Ali Abbas, A. I. R. (20) 1933 Oudh 170, that even in cases which do not fall within Sections 13 to 15, Court-fees Act the Court has an inherent jurisdiction to order a refund of court-fee. As no other reason for arriving at this conclusion was given in this ruling, I referred to the Oudh ruling cited therein. In the Oudh case, the appeal was found wholly unnecessary and, as no proceedings except the admission of the appeal had taken place, it was allowed to be withdrawn and it was directed that a certificate for the refund of court-fee be issued in favour of the appellant. It is doubtful therefore if the memorandum of appeal in that case was treated as 'filed, recorded or received' under Section 6, Court-fees Act. In the present case,however, the memorandum of appeal had been not; only filed and recorded but also adjudicated upon. The Oudh ruling therefore cannot be takenas an authority for the proposition that where a memorandum of appeal has been duly filed and received within the provisions of Section 6, Court-fees Act, a certificate of refund of court-fee is permissible in respect of it even though such a refund does not fall within Sections 13 to 15 of that Act. None of the rulings cited by the learned counsel for the appellants therefore supports his contention.

7. Under Section 6, Court-fees Act, payment of court-fee on a memorandum of appeal in accordance with the charges mentioned in Schedules I and II to that Act is mandatory, and the only cases in which refund of court fee has been allowed are those mentioned in Sections 10 (1), 13 to 15 and 19A of that Act. That being so, it is clear to ray mind that no refund of court-fee can be allowed in any case not falling under these specific provisions of the Act. In dealing with the question of whethera Court had discretion enabling it to relieve a party from the operation of the Limitation Act on the ground of hardship it was observed by their Lordships of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh, A. I. R. (22) 1935 P. C. 85 as follows:

'In their Lordships opinion, it is impossible to hold that in a matter which is governed by Act, an Act which in some limited respects gives the Court a statutory discretion, there can be impliedly in the Court, outside the limits of the Act, a general discretion to dispense with its provisions.'

In the present case also, the only discretion a Court has in the matter of allowing refund of court-fee is the statutory discretion contained in the aforesaid sections of the Court-fees Act, and therefore no general discretion outside those limits can be implied in the Court. I therefore hold that refund of court-fee cannot be allowedunder the inherent powers of the Court under Section 151, Civil P. C. I am supported in this view by Chockkalingam v. Maung Tin, A. I. R. (23) 1936 Rang. 208 and by the aforesaid ruling in A. I. R. (22) 1935 Cal. 707, cited by the learned counsel for the applicants himself.

8. It may be added that even if it were possible for me to entertain the present application under Section 151, Civil P. C., this is not a fit case in which discretion under the inherent powers of the Court should be exercised in favour of the applicants. As adverted to above, my learned predecessor-in-office while remanding the case ordered that costs will abide the result. Had the suit been dismissed on remand the applicants would have become entitled to recover the court-fee in question as part of their costs from the plaintiff. And the applicants took a chance in awaiting the result of the retrial to see if they could avail themselves of the benefit of that order. It was only after the retrial had again ended in a decree being passed against them that they filed the present application for a certificate of refund of court-fee along with their appeal against the judgment and decree of the trial Court. This conduct of the applicants clearly disentitles them to the exercise of discretion in their favour.

9. The application is rejected, and the applicants will pay Rs. 15 as costs to the Government.


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