RAOJI BHIOSANJI KUNBI Vs. COLLECTOR

JUDGEMENT

(1.) 1. The applicant through his pleader presented a plaint in the Court of the Sub-Judge, Second Class, Chandur, on 5th July 1933. The stamps on the plaint were sufficient, but they were not of the correct denominations, according to the rules, and therefore the plaint was not registered, but the applicant was given time till 13th July to affix the proper stamps on the plaint. That was done on 12th July, and then the plaint was duly admitted and registered. Subsequently the applicant applied to the Court for return of the original stamps to him for the purpose of a refund. The lower Court however has decided that, as the plaint was put in originally in contravention of the rules through a pleader, who must have been aware of the rules, there was no question of ignorance or mistake, and the Judge held that there was no justification for returning the stamps to the applicant. The applicant has now applied for revision of that order.

(2.) IT is clear, I think, that the applicant has no absolute right to a refund and the stamps could only be returned as a matter of grace, if the Court was opinion that there was a bona fide mistake, without accepting the plaint. When once however the plaint had been admitted, the stamps should have been cancelled and there would be no question then of returning them. In Jangi Pandey v. Saudagar Singh 1931 Pat 113, a case exactly in point, it has been held that the trial Court had no power to return stamps which were once attached to the plaint and became the part of the judicial record and that the question of refund was one to be determined by the revenue authorities, the Collector alone having the power to grant a refund. It was held however that the trial Court should have granted a certificate to the plaintiff, stating the facts, which certificate could then be presented to the Collector; It may be noted that the rules with regard to stamps on this point in Patna are the same as in these Provinces.

(3.) THE question of refund in this particular case is not, strictly speaking, covered by any of the Sections 10 to 15, Court-fees Act, and it is a matter to be decided by the revenue authorities. I would point out that this question is not covered by the list of reductions and remissions authorized by the Governor-in-Council Under Section 35, Court-fees Act, given at p. 203 of the Stamp Manual. Clause (4) of these reductions mentions the case of a plaint that is rejected for a technical error in form, but not the case of a plaint that has been wrongly stamped. The only question that remains to be determined is whether in the circumstances of the case the lower Court should have granted a certificate to the applicant, stating the facts. This, I think, he should do, as the Court itself was not competent either to grant or refuse a refund. The Court can of course in stating the facts make a recommendation, but the decision whether a refund has to be made or not is one that can be only made by the Collector in exercise of his fiscal authority. The reason given by the lower Court for refusing to return the stamps in the present case may, of course, be a good one for not recommending a refund, but that is a matter which I will leave to the discretion of the lower Court. I therefore while upholding the order of the lower Court refusing to return the stamps to the applicant, send; the case back to the Sub-Judge with a direction that he should grant the applicant a certificate stating the facts, which certificate the applicant may present to the Collector. In the circumstances I order that parties will bear their own costs of this revision.