KARFULE LTD Vs. ARICAL DANIEL VARGHESE

JUDGEMENT

(1.) This is an application for refund of court-fees. An appeal was preferred to this Court from a decree of the City Civil Court, and the appeal was compromised out of Court. The appellants have now applied for refund of court- fees, and the question is whether we have the jurisdiction to order the refund.

(2.) Now, the only power of the Court to order a refund of court-fees arises from Sections 13, 14 and 15 of the Court-fees Act, and it is not disputed that the case of the appellant does not fall under any of these three sections. The contention put forward by Mr. Pandya is that we should exercise our inherent power under Section 151 of the Civil Procedure Code and order the refund. The refund is sought on the ground that the appeal was withdrawn before it was heard by this Court, and that the judicial machinery which functions when a litigant comes to this Court did not function fully; and, therefore, to put it in substance, the argument is that the court-fees were not earned by Government and it is but just that a part of the court-fees should be refunded. The argument put that way is very attractive; but the question is whether we have the power to order refund under circumstances of the present case. Now, we think, as a general principle of law, it cannot be disputed that a Court has no power under Section 151 to circumvent the provisions of law. If the Legislature has cast a particular obligation upon a citizen, it is not open to the Court under Section 151 to exonerate the citizen from that liability or to reduce the quantum of that liability. Law must be given effect to, and the Court cannot be a party to the contravention of that law by exercising its supposedly inherent powers under Section 151. Therefore, if there was a legal obligation upon the appellant to pay the court-fees before they could prefer an appeal to this Court, the mere fact that the appeal was compromised out of Court and was withdrawn, and not heard by this Court, cannot exonerate the appellants from paying the court-fees, nor can they contend that they are liable to pay less court-fees than what the law lays down is the proper court-fees. Undoubtedly, the Court has, as we shall presently point out, exercised inherent jurisdiction under Section 151 to order refund of court-fees in cases not covered by Sections 13, 14 and 15. But when we look at the principle underlying these cases, the principle is clear in all of them. There may be cases where a litigant pays court- fees which he is not liable to pay under the Court-fees Act. The payment may be made either by inadvertence, oversight or mistake. Under these circumstances, the Court orders the revenue authorities to refund either the whole of the court-fees or the excess which was more than what the law required. But the principle which is clearly deducible from these cases is that, as there was no legal obligation to pay the court-fees or the excess which was paid by the party, the Court orders, in substance, the law to be carded out) and not to increase the liability upon the litigant. But this principle cannot be extended in support of a litigant who has paid the court-fees for which, in law, he was liable, but who, because of certain circumstances, feels that equitable considerations require that he should not be asked to pay either the full court- fees or part of the court-fees. If once this principle is understood and appreciated, then the large number of decisions which were cited at the bar become perfectly clear.

(3.) The case most strongly relied upon by Mr. Pandya is -- 'Mohammad Sadiq Ali v. Ali Abbas', 7 Luck 588. In that case, a refund was ordered because the Court took the view that the appeal in that case was wholly unnecessary. Now, the facts in that case are not stated, and we are not able to judge as to why a particular appeal in that case was wholly unnecessary. But even so, in our view, this case goes beyond the principle which, we think, is the right principle, and, with respect, we do not agree with the view taken by the Lucknow High Court. If an appellant chooses to file an appeal which ultimately turns out to be unnecessary, he is bound to pay the court-fees which the law requires him to pay. That is not a case where he pays court-fees which he was not legally liable to pay. Then the other case is -- 'In the matter of Kumud Nath Das Saha', 39 Cal WN 1074. That is a case which falls within the principle we have enunciated, because the Calcutta High Court points out that it was a case of obvious injustice as the appellant had paid court-fees in excess of the legal requirements. The third decision on which Mr. Pandya places reliance is a judgment of a single Judge of the Lahore High Court reported in -- 'Firm Hari Ram & Sons v. H.O. Hay', AIR 1939 Lah 257. That was a case where the Court held that the two lower Courts had not decided the case on merits, and, therefore, ordered a remand. Now, this case did not strictly fall under Order XLI, Rule 33, and, therefore, Section 13 of the Court-fees Act strictly had no application, But the Lahore High Court took the view that the case was analogous to one which fell within Section 13, and, therefore, made an order for refund of court-fees. With respect, in our opinion, the decision is not a correct decision, because, if the Court has to give effect to Section 13, it must give effect to the provisions of that section as framed by the Legislature. It is not open to the Court to legislate and to extend the principle of Section 13 to other analogous cases. Section 13 is strictly confined to a case of remand under Order XLI, Rule 33, and it is not open to the Court to say that, although the Legislature decided that the court-fees should be refunded only in a case where a remand is ordered under Order XLI, Rule 33, the Court should order refund in other cases of remand similar to orders of remand under Order XLI, Rule 33.