DAYA RAM Vs. DEEP CHAND GUPTA

JUDGEMENT

(1.) THIS revision under Section 25 of the Provincial Small Courts Act has been filed by the defendant against the judgment and decree passed by the District Judge, Tehri Garhwal decreeing the plaintiff's suit for ejectment, arrears of rent, and damages. On the pleadings of the parties, the Judge Small Cause Court framed six issues and decided all of them against the defendant and in favour of the plaintiff. In nutshell, the finding was that the defendant had sold his disputed house, which belonged to him at one time, to the plaintiff and thereafter became his tenant. The trial Court further found that the notice terminating the tenancy was valid.

(2.) ASSAILING these findings, Sri K.C. Dhuliya, counsel appearing for the applicant, urged that the property like the one, which was involved in this case, could not be sold for Rs. 4,000/-, the transfer was fictitious, and that the same could not confer any title on the plaintiff. This is essentially a question of fact. On the evidence of the parties, the Court held that the defendant took Rs. 4,000/- and sold the disputed house by means of the sale-deed dated 16.2.1972 and thereafter he took the house on rent. As no error of law could be pointed out by the learned counsel for the applicant in recording of this finding, the contention must fail. The notice terminating the tenancy has been found to be valid by the Court below. To this finding, no exception can be taken as no error of law was pointed out. In the end, the learned counsel for the applicant made a prayer for issuing a certificate to the Collector by the High Court for the refund of the amount of Rs. 1107.50, which has been paid in excess. It appears that being under a wrong impression that the judgment given by the District Judge was in regular suit, counsel filed the present case as a First Appeal but, subsequently, on detecting that the order of the District Judge was given on the Small Cause Court side, he converted it into a revision under Section 25 of the Provincial Small Cause Courts Act. Admittedly, the Court-fee payable on such a revision is Rs. 10/-. The total amount paid by the petitioner was Rs. 1117.50, as a result of which the applicant became entitled to Rs. 1107.50.

(3.) The question that next arises for consideration is whether this Court is empowered to direct for the refund of the amount paid in excess on the ground of mistake of the counsel. In Munna Lal v. Abir Chand, AIR 1958 All. 766, a Full Bench of this Court held that in exercise of the inherent power, the Court can direct for the refund of the court-fee. The mistake of a counsel under which the court-fee is paid in excess is a valid ground, in my opinion, for refund of the same. The well-settled practice is that a client should not suffer on account of mistake of the counsel. Applying the said principle to the present case as well, I consider that due to a bonafide mistake entertained by the counsel appearing for the applicant, a first appeal was filed. That is a good ground as held in Aya Singh v. Munshi Ram, AIR 1968 Delhi 249, for making the refund.