INDU BHUSAN ROY CHOUDHURY Vs. SECYOF STATE

JUDGEMENT

(1.) This is a Rule obtained by the petitioner calling upon the Secretary of State for India in Council to show cause why the petitioner should not be granted a certificate authorizing him to receive back from the Collector a certain sum paid as court-fees on a plaint. The facts which require to be noted are as follows: The petitioner is the common manager of a certain estate in the district of Bakargunj. His predecessor instituted a suit for rent in the Court of the Subordinate Judge at Khulna: the plaint was insufficiently stamped; several adjournments were granted in order to enable the plaintiff to pay the deficit but eventually the plaint was rejected on 20 July 1933. Then on 13 March 1934 the petitioner applied to pay the deficit court-fees and he was given five days within which to do so. The Subordinate Judge then restored the suit to the file, purporting to act under Section 151, Civil P.C. One of the defendants then obtained a rule from this Court, which was eventually made absolute it being held that the petitioner's proper remedy was by way of appeal and that the Subordinate Judge's order was passed without jurisdiction: it was accordingly set aside. The petitioner then obtained this Rule and asks us to give him a certificate authorizing him to receive back from the Collector the whole sum which was paid on account of court-fees.

(2.) Prom what has been said above it is clear that the petitioner is not entitled to any relief under the provisions of the Court-fees Act. But we are asked to grant a certificate under the inherent jurisdiction which is preserved to Courts under Section 151, Civil P.C. On behalf of the opposite party Dr. Basak has contended firstly that the Courts have no such power in relation to a refund of court-fees and secondly that the facts of the present case do not entitle the petitioner to any relief. I should certainly not be prepared to hold that the Courts have no jurisdiction to grant relief in suitable cases, though there may be some doubt as to the precise form which the relief ought to take. This matter was considered by the Madras High Court in the case reported in I.L. R Thammyya Naidu V/s. Venkataramanamma, 1982 Mad 438. In that case the petitioner had paid excess court-fees. The learned Judges held that it would be unjust and unreasonable for the High Court to refuse to assist him to recover them and granted him a certificate to the effect that excess court-fees had been paid leaving it to the revenue authorities to decide whether a refund should be made or not. With that decision I respectfully agree. I am not prepared to say that the particular form of certificate provided for in Sections 13, 14 and 15, Court-fees Act, ought to be granted in cases which are altogether outside the scope of the Act. I should therefore be prepared to grant the petitioner a certificate to the effect that he ought to be granted a refund provided that he could persuade us that his petition has any merit in it.

(3.) The reported cases generally deal with petitions for a refund of court-fees, which have been improperly levied. The present case is not one of that character and it is not even suggested that the court-fees paid were improper. The only ground upon which the prayer for a refund is based is that the suit was not tried out. I would understand a principle by which an unsuccessful plaintiff or appellant should be held entitled to a refund of court-fees on the ground that he gained no benefit by the litigation. Mr. Sen did not even contend that we ought to give effect to any such principle. But if we are to stop short of that, we should find it difficult to draw the line anywhere with any show of reason. In the present case "we are asked to grant relief to a litigant who failed because he did not follow the correct procedure. If we were to do that, it would be difficult to refuse relief to a litigant who failed on any preliminary ground. It would then be difficult to resist the conclusion that mere failure was in itself a sufficient ground for a refund. The result is that in my opinion relief ought not to be granted under Section 151, Civil P.C., in cases where the proper court-fees have been paid. We were asked by Mr. Sen to make this Rule absolute on the authority of the case reported in Gastaun GC V/s. Janaki Nath, 1934 Cal 615. The facts are these: The petitioner filed an appeal to this Court out of time. He filed an application for extension of time under Section 5, Lim. Act, and obtained a rule on the opposite party, which was eventually discharged. He then applied under Section 151, Civil P.C., for a certificate authorising a refund and was successful. With great respect to the learned Judges, who decided that case it is clear that, if the view which 1 have taken is correct, that case was wrongly decided. I should therefore have desired to refer the matter to a Full Bench, if the facts in the present case had been similar. But as the cases are clearly distinguishable, it is not necessary to do so. We accordingly discharge this rule with costs hearing fee one gold mohur. Nasim Ali, J.