PERIATHAYAA ALIAS P MUTHU Vs. L NARASINGHA RAO

JUDGEMENT

(1.) THIS is a petition under S. 115 C. P. C. to revise an order of the Subordinate judge of Madurai, in an application made under S. 151 of the Code for a direction for refund of the court fee paid on the plaint on the ground that by reason of the madras Buildings (Lease and Rent Control) Act 1960, as amended by Madras Act 11 of 1964, which came into force on 10-6-1964, the suit stood abated and all the rights which had accrued to the plaintiffs prior to the amendment became unenforceable. The suit is stated to be for ejectment of the defendant-tenant. The court below was of the view that inasmuch as there was no provision in the madras Court-fees Act and Suits Valuation Act 1955, no refund of the court fee could be ordered. It also relied on Tarachand Ghanshyamdas v. State of West bengal (S) where the view was taken that if in the Act provision was made for refund in particular cases, but not in other cases, the inherent power under Sec. 151 of the Code, could not be invoked and the Act should be taken as exhaustive.

(2.) THIS court also took a like view in Nagarathnam, in re But there, Panchapakesa Aiyar J directed issue of a certificate in exercise of the inherent powers of the court under S. 151 C. P. C. on the view that the Court-fees act in the matter of refund was not exhaustive. The Court-fees Act, as it existed then provided by Ss. 13, 14 and 15 for refund of court-fee in certain specified cases. That was a case, which was not covered by any of these sections. There, the petitioner filed a second appeal, but then the dispute was compromised, with the result the second appeal became unnecessary. Thereafter, refund of the court fee paid on the Memorandum of second appeal was applied for. This court held:

(3.) IT follows, that this court has a limited power to order refund, in exercise of its inherent power under S. 151 of the Civil Procedure Code, but it does not extend to cases other than the instance mentioned in ILR 57 Mad 1028: (AIR 1934 Mad 566) (SB ). Apparrently, this decision proceeded on the basis that if a party was compelled because the court took a particular view to pay court fee, it had won inherent power to set its own mistake right. It was, perhaps, on this ground the court considered that the inherent power of the court under S. 151, C. P. C. would extend to refund of court fees in the particular cases of mistakes or oversight by court, which was responsible for the excess court fee paid by the litigant.