HAJI AHMEDMIYA MANIAR Vs. FATAMABU ABUBAKAR MORRISWALA

JUDGEMENT

(1.) This application raises a question of some interest regarding the interpretation of section 43 of the Bombay Court Fees Act No. XXXVI of 1959. The question arises in the following manner:-

(2.) The opponents-plaintiffs filed a suit No. 92 of 1957 in the 2nd Joint Civil Judge (Senior Division). Ahmedabad against the petitioner-defendant for the recovery of Rs. 12412-8-0 alleged to be due and payable under a promissory note executed in 1951 by the petitioner. The Trial Court rejected the petitioners plea of limitation and passed a decree in favour of the opponents plaintiffs for a sum of Rs. 12 347 On the 17th of January 1959 the petitioner presented a First appeal against the said decree. On the 7th of April 1959 that appeal was registered and given a number. viz. No. 281 of 1959 Before the appeal could come up for admission the learned Advocate for the petitioner lodged a note before the office for the appeal to be placed on bound for withdrawal. In accordance with that note the appeal then already numbered 281 of 1959 was placed on 15/04/1959 before the Division Bench of the then High Court of Bombay consisting of Tambe and Datar JJ. The learned Judges granted liberty to the petitioner to withdraw the appeal and thereupon the appeal was withdrawn. The learned Advocate for the petitioner thereafter filed a note before the office asking for a refund of the Court-fees paid by the petitioner at the time of the presention of the appeal. The matter was placed before Mr. Justice Datar of the High Court of Bombay on the 7/11/1959 when the learned Judge asked the petitioners advocate to file a regular application. The learned Advocate for the petitioner thereupon filed an application being application No. 531 of 1960 praying therein for the refund of the entire Court-fees paid by the petitioner. As a result of the bifurcation this application has come to be transferred to this Court.

(3.) Mr. Shah for the petitioner has contended that the petitioner is entitled to the refund of the court-fees by reason of the fact that the appeal was withdrawn even before it could come for admission. As I have said liberty to withdraw the appeal was granted to the petitioners advocate on 15/04/1959 even before the Bombay Court Fees Act of 1959 came into force. The new Act came into force on 1/08/1959 Mr. Shah has conceded that the only sections in the Court Fees Act 1870 which provide for refund are sections 13 14 15 and 31. There is no dispute that none of these sections provides for the refund of Court-fees in respect of an appeal which has been withdrawn in the circumstances in which the present appeal was withdrawn. Mr. Shah however contended that assuming that the Court Fees Act of 1870 applies though none of the sections 13 14 15 or 31 of that Act is applicable this Court has inherent jurisdiction to order refund of the court fees as the appeal was withdrawn by the petitioner before it even came up for admission. Mr. Shah has relied upon certain observations made by Mulla in his commentary under section 151 of the Code of Civil Procedure 12 edition where it is observed that a Court has inherent power to order refund of court-fees paid by inadvertance or in cases which are not governed by sections 13 14 and 15 of the Court Fees Act 1870 Relying on these observations Mr. Shah argued that I should exercise inherent power under section 151 and direct that the Court-fees paid by the petitioner should be refunded to him.