AYA SINGH Vs. MUNSHI RAM

JUDGEMENT

(1.) Aya Singh, defendant in the trial Court, presented an appeal in this Court from an order of the learned Additional District Judge dated 18th September, 1967 allowing the appeal of Manshi Ram plaintitff and after setting aside the Judgment and decree of the trial Court, remanding the case back to the Court of First instance for re-decision. By mistake an appeal was p"esented in this Court as a regular second appeal from a decree on which court fee of Rs. 686.80 Paise was affixed. The office note shows that an enquiry was made from the counsel for the appellant as to how a regular second appeal lay against an order of remand. To this, the counsel replied that the appeal may be treated as an appeal from older and may accordingly be registered as first appeal from order. The office, without realising that it was, as a matter of fact, a second appeal, for it was the second appellate Jurisdiction of Ibis Court which was being invoked, registered the appeal as an F. A. 0. instead of an S A.O. The appeal was on this basis marked before a Division Bench for preliminary taring. The learned counsel for the appellant, when re-presenting the appeal with a request that the same may be treated and registered as an F. A 0, also presented an application under section 13 of the Court Fees Act read with Section 151, Code of Civil Procedure, playing for a refund certificate in regard to the court-fee paid in excess on the ground that the excess court fee on the memorandum of appeal was affixed under a mistaken and bona fide impression. It was stated that on a memorandum of appeal from an order,a court-fee of only Rs. 5.25 was payable, whereas in the case in hand, court fee of Rs. 686.80 was paid under a bona fide mistake.

(2.) When we heard the appeal at motion stage on 1st February, 1968, we felt that there was no merit in the appeal, but left the appeal pending and issued notice to the Central Government counsel in Civil Miscellaneous No. 45 J of 1968 for 8th February. 1968. On that date, we heard arguments for both sides and reserved orders. The learned counsel for the appelant-petitioner has placed his reliance on a Full Bench decision of the Punjab High Court in Jawahar Singh Sobha Singh v. Union of India, in which Bhandan C. J. and Tek Chand J. have written separate lengthy Judgments on the scope of the inherent power of a Court to remit or refund court-fee In the opinion of the Full Bench, the inherent power of a Couit to remit or refund court-fee is confined only to fees which have been illegally or erroneously assessed or collected and does not extend to lees which have been paid or collected in accordance with the provisions of the Court-Fees Act. Both sides have placed reliance on this decision. Shri Mohindra has, however, also relied on Sohan Singh v. The Oriental Bank of Commerce, and Mohadeo Ganesh v. Keshav Khandera. In Sohan Singh's case, a Division Bench of the Punjab High Court construed the order of the High Court to be a remand order under order 41, Rule 23, Civil Procedure Code and allowed refund of court fee. It also added that even if the case did not fall within section 13, Court Fees Act, the case had to be remanded for want of proper trial and that the appellant should have the certificate for obtaining refund of court-fee. The bench observed that practically every couit except the Bombay High Court has recognised the inherent power of the Court to order refund of court-fee, adding that refund can be order refund of court-fee, adding that refund can be ordered ex debito justititua In the case of Mahadeo Ganesh, the applicant there was held entitled to the relund of court-lee paid by him under an erromeous order of the Court and it was observed that even in cases not covered by sections 13, 14 and 15 of the Court Fees Act, the Court can, under section 151, Civil Procedure Code. order refund of court fee paid in excess either by mistake, inadvertance or under some wrong order of the Court. Shri Parkash Narain has, on the other hand, referred us to a decision of the Allahabad High Court in Tej Bahadur v. Pearelal, in support of the submission that it is only the provisions of the Court Fees Act which Justify an order of refund.

(3.) . Turning first to the Full Bench decision of the Punjab High Court in Jawahar Singh Sobha Singh's case it may be pointed outthat the question referred for answer by the Full Bench was :- Is the power of a Court to remit or refund Court-fees confined only to fries illegally or erroneously assessed or collected or does it extend also ro fees which have been paid or collected in accordance with the provisions of the Court Fees Act ?" Obviously, the Bench was not concerned with the excess court fee paid under an erroneous impression. It was assumed there that the Division Bench decision of the Punjab High Court in Sohan Singh's case had taken the view that the Court had lull power to grant refund of court-fees even when the fees had been collected in accordance with the provisions of law and the Full Bench apparently negatived such a view. There are quite a few reported cases of the Lahore and Punjab High Court in which excess court-fee paid under a bona fide bat mistaken impression has been ordered to be refunded. In Central Bank of India v. Thakur Das Tulsi Ram, a learned Single Judge of the Lahore High Court upheld the inherent power of the Court both to remand acase not covered by Order 41 and lso to refund court-fee under the inherent power not covered by section 13 of the Court Fees Act. Reference for a precedent to the same effect was made to Mt. Gendo v. Radhe Mohan, where Tek Chand, J. had observed that a Court remanding a case under Section 151, Civil Procedure Coda, is equally competent to order a refund of court fee paid on the memorandum of appeal. In Jan Mohammad v. Amolak Ram", the court-fee paid on an appeal which did not lie and was converted into a revision, was ordered to be refunded to the party concerned. In Firm Tirath Ram and Sons v. Free India General Insurance Company Ltd, D. K. Mahajan, J. of the Punjab High Court directed refund of excess court-fee, when by mistake, ad valorem court-fee was paid on appeal which only required a fixed ammount of court-fee. The direction for refund was given by relying on the Bench decision in Sohan Singh's case In Smt. Periathavaa v.L. Narasingha Rao, a learned Single Judge of the Madras High Court recognised a Limited inherent power in a Court to order refund under section 151 of the Civil Procedure Code. It is not necessary to refer to the decisions of the other High Courts upholding inherent power of the Court to order refund of excess court- fee.