SARADAMBAL Vs. SEETHALAKSHMI

JUDGEMENT

(1.) T. O. S. No. 3 of 1959 was disposed of by me after the withdrawal of contest by the defendant. The plaintiff in the suit has applied for refund of court-fee paid on the plaint when the application was converted into a suit.

(2.) A fixed fee of Rs. 25 was paid when the proceeding was instituted as a original petition as required by Art. 11 (K) of Sch. II of the Madras Court-fees and Suits valuation Act, 1955. When a caveat was entered the proceeding was converted into a suit under Or. XXV of the Original Side Rules, and thereupon court-fee was demanded in accordance with the proviso to Art. 11 (K) of Sch. II of the Madras court-fees Act and ad valorem court-fee to the extent of one-half of the scale of fee prescribed in Art 1 of Sch I of the Court-fees Act on the market value of the estate, less the fee already paid on the application, was collected. It is this fee that was levied and collected which is sought to be refunded by the present application.

(3.) COUNSEL for the plaintiff based his argument upon two grounds. First, he contended that despite the absence of any provision in the Court-fees Act, 1955 for refund of fee collected at the time when this proceeding was converted into a suit, the court has an inherent power in suitable circumstances to order such refund. In support of his argument he contended that the purpose for which the fee was paid when the proceeding was converted into a suit was not achieved, having regard to the subsequent event that the defence was withdrawn and the probate was ordered to be issued. He also maintained that the question whether the fee actually levied at the time when the proceeding was converted into a suit was in excess of the requirements should be decided not only with reference to the state of affairs existing at the time when the fee was collected, but also with reference to subsequent events. The second argument of learned counsel was that the proviso to Art. 11 (K) would only govern clause (2) and not clause (1) of that article Clause (i) of the Article 11 (k) reads thus: