KRUTIBASA NAYAK Vs. JAGANNATH MAHAPRAVU

JUDGEMENT

(1.) THE petitioner has filed a petition praying for the refund of the court-fee of Rs. 490.50 paise paid by him on the memorandum of this appeal. THE petitioner was respondent No. 5 in Second Appeal No. 91 of 1971 which was allowed by Hon'ble R. N. Misra. J., by his judgment dated 18-7-1974. As the said judgment was delivered by Misra, J., while he was sitting in a Divisional Bench, Mr. Ray, the learned counsel for the petitioner, orally moved Misra, J., in his chambers on the same day for granting him leave to file appeal against the aforesaid decision. In the petition before us (at flag W) it is stated on affidavit that the petitioner's lawyer on the said occasion returned from the chamber of Misra, J., with the impression that the leave prayed for was granted by the Judge and with that impression the memorandum of appeal with court-fee of Rs. 490.50 was filed in this Court endorsing therein that the required leave for the purpose had been granted by the Judge. THE memorandum of appeal was registered in the High Court office as A. H. O. No. 31 of 1974 and was placed before a Division Bench of which Misra, J., was not a member. As in the connected records there was no order granting leave to appeal by Hon'ble R. N. Misra, J., that Division Bench directed that matter to be placed before a Division Bench consisting of Hon'ble Misra, J. When the matter thereafter came up before a Division Bench consisting of R. N. Misra. J., that Bench ordered the said matter to be placed only before R. N. Misra, J., in the Single Bench. Accordingly the matter was placed before R. N. Misra, J., in the single Bench, and he, on the question as to whether leave was granted by him or not in that case, stated in his order dated 3-40-74 that after he delivered the judgment in the aforesaid second appeal Mr. Ray came to his (Misra J.'s) chambers and prayed for the said leave. But as the lawyer for the other side was not present at that time in the chambers Misra, J., could not entertain the said prayer of Mr. Ray and expressed that Mr. Ray might make a written application to that effect. It is stated in the said order that no leave was granted by him in this case and so it was not open to the petitioner to file an A. H. O. After stating as above, Misra, J., desired the matter to be placed again before a Division Bench.

(2.) AFTER the said order of Misra, J., the petition in question was filed on 19-11-1974 praying for the refund of the court-fee paid on the memorandum of appeal filed under aforesaid circumstances. This petition has been filed invoking the court's inherent jurisdiction under Section 151, Civil Procedure Code. Mr. Ray urges that on the facts and circumstances of this case this is a fit case in which the court in the interest of justice, should exercise its inherent powers and order refund of the court-fee paid on the memorandum of appeal. Mr. Mohanty, the learned Additional Government Advocate, opposes the petitioner's said prayer by submitting that the provisions in the Court Fees Act for the refund of court-fee are not applicable to the facts of this case; that the court, on the facts of this case, should not exercise its inherent power to order refund of the said court-fee; and that only in cases where the court-fee is paid on a mistaken or wrong calculation of the same, or by inadvertence or being called upon by the court to pay excess court-fee, which was not required under the law to be paid, then alone the court-fee paid can be ordered to be refunded and in no other case. According to Mr. Mohanty the court-fee paid on the memorandum of appeal is in accordance with law and the prayer for refund of the same is not on the basis of any mistake in the payment of the same but only on the basis of the mistake in filing the appeal as stated above, and so the prayer for refund cannot be granted.