VENGAMMAL Vs. RAMACHANDRAN

JUDGEMENT

(1.) IN this case an appeal memorandum was filed against a particular decision of sub Court, Vellore, in partition suit. A court-fee of Rs. 200 which was the correct court-fee was affixed to the Memorandum of appeal. But, before the appeal memorandum was numbered and when it was in the stamp register stage, having been numbered as S. R. 17499 of 1968, the appellant were able to compromise the matter with the respondents and therefore filed C. M. P. 1030 of 1971 to withdraw the appeal. That permission was granted. By this application C. M. P. No. 12034 of 1970, the appellants pray for issue of a certificate for refunding the court-fee of Rs. 200.

(2.) IT is conceded by Sri T. V. Balakrishnan, learned counsel for the petitioners that the prayers, is not governed by any specific provision of the Court fee Act of 1955, (those provisions are contained in Section 66 to 70); but the learned counsel relies on a decision of a Bench of this court in Ramaswami Nadar v. State of Madras,. That was a case where a writ appeal was filed, but before it was numbered and was in the stamp register stage, the petitioner got the relief he wanted outside the court and thereafter he filed the application for refund of the court-fee. Veeraswami, C. J. and K. N. Mudaliyar, J. delivering the judgment made it clear that the prayer would not come under any of the specific provision for refund enacted in the Court-fees Act; but they observed that under the inherent power of the court under Section 151, Civil P. C. a certificate would issue where the court felt that, in the interests of justice, it would direct a certificate to issue for the refund of the court-fee subject to deduction of the usual percentage. They referred to the previous cases. They also referred to the principle that court-fee is not a tax but only a fee. They accordingly wound up by saying that there will be a direction for the issue of the usual certificate for the refund of court-fee subject to the reduction of the normal spoliation charges.

(3.) THE form which the learned Judges had in mind does not appear from the judgment and the office has not been able to trace the exact form of the certificate issued in that particular case. But I find that in a subsequent case C. M. P. No. 1009 of 1970 (Mad) in an unnumbered writ appeal S. R. 40053 of 1962 which was a similar case where the writ appeal had not been numbered but was settled out of court an order of refund was directed by Veeraswami, C. J. and on of us (Gokulakrishnan, J.) to the following effect:--