JETHANAND WADHUMAL AND CO Vs. TOTARAM HARDAWARIMAL

JUDGEMENT

(1.) THIS is an application by the appellant Jethanand, as proprietor of the firm Messers Jethanand Wadhumal & Co. Ajmer for refund of court-fee paid by him in this appeal under sec. 151 of the Code of Civil Procedure.

(2.) THE applicant was defendant in a suit brought against him by the plaintiff for damages on account of breach of contract. THE trial court dismissed the suit. THE plaintiff went in appeal to the District Judge, Ajmer who set aside the judgment and decree of the trial court and remanded the suit for trial. This order was obviously passed under Order 41 Rule 23 of the Code of Civil Procedure in as much as the trial court had dismissed the suit on a preliminary issue, and that finding was set aside by the learned District Judge. THEreupon, the defendant filed an appeal in this Court, which he called civil second appeal No. 65 of 1957. A court fee of Rs. 125/- was paid by him on the memorandum of appeal, which was presented in this Court on the 10th September, 1957. Learned counsel seems to have soon realised that he had made a mistake in paying the court-fee of Rs. 125/- on the memorandum of appeal and, therefore, he made an application on the 20th September, 1957 in which he submitted that he had filed a second appeal under a bonafide mistake and had paid a court-fee of Rs. 125/- instead of a fixed court-fee of Rs. 2/- only which was payable on a civil miscellaneous appeal of this character. A notice was ordered to be issued to the State on this application.