KALAWATI ADHIKARI Vs. RUPNARAYAN BAHUN

JUDGEMENT

(1.) The appellant has filed an application stating that the matter in dispute in this appeal between her and her son, the respondent, has been compromised out of Court and praying that she may be allowed to withdraw the appeal and may also be allowed a refund of the Court-fees paid by her on the memorandum of appeal. The question that has arisen for our consideration is whether the prayer of the appellant relating to refund of Court-fees can and should be allowed.

(2.) I have no hesitation in my mind that we should allow this prayer, if we can. Chagla, C.J., and Gajendragadkar, J. (as his Lordship then was) have observed in Karfule Ltd. v. A.D. Varghese (AIR 1953 Bom 73 at 95), about "the very great desirability of encouraging the litigants not to indulge in unnecessary litigation and of putting an end to such litigation as soon as possible" and their Lordships have further pointed out that "one of the ways of doing this is to induce litigants to withdraw suits or appeals or to compromise suits or appeals" and that "one way of helping them to do so is by tempting them by the return of Court-fees." According to this view, therefore, when a suit or appeal is withdrawn or *****omised a refund of Court-fees should be ordered, if such a course is permissible under and not prohibited by law. In Tarachand versus State (AIR 1955 Cal 258) Chakrabarty, C.J. and Lahiri, J., have observed that by levying Court-fees State in fact sells justice and "court-fees are the price levied by the State from persons litigating before it for the service rendered to them in connection with their causes". It may, therefore, be urged that in a case where a suit or appeal has been withdrawn before the Court is required to hear the parties and as such there has been no occasion for rendering any service to the parties in respect of their causes, the Court-fees, which are levied as price for rendering services in respect of litigation, should be returned as no service or no appreciable service has been required to be rendered in such a case and the judicial machinery, which functions when a case is pressed for hearing has not functioned.

(3.) But in that Bombay case, where also the appeal was withdrawn and refund of Court-fees was prayed, it was held that the Court has no power under the law to order the refund of Court-fees in such a case. In fact there are weighty authorities in favour of the view that except when the Court-fees have been illegally or erroneously assessed or collected, the Court, in cases governed by the Court-fees Act, 1870, has no inherent power to order the refund of Court-fees and save as aforesaid, the power of the Court to order refund of the Court-fees is confined within the provisions of Sections 13, 14 and 15 of the Court-fees Act and reference in this connection may be made to the Full Bench decisions of the Punjab High Court in Jawahar Singh v. Union of India (AIR 1958 Punj 38), to the Full Bench decision of the Allahabad High Court in Munna Lal v. Abir Chand (AIR 1958 All 766) and to the Calcutta and the Bombay decisions noted above. In Om Prakash Gupta v. State of Uttar Pradesh (AIR 1955 SC 600) the plaintiff who was a civil servant, had claimed several reliefs including damages and when he subsequently realised that he had no right to sue for damages he gave up that claim and prayed for refund of Court-fees paid in respect of that relief. The trial Court and the High Court refused the prayer and when in appeal before the Supreme Court the prayer was renewed, the Supreme Court observed as hereunder :