Abodh Bala Ghosh vs Radharani Dasi

Das, J.—This is an application by the Appellant (Defendant 1) for a direction for a refund of the court-fees paid on the (sic) of appeal and for the issue of a certificate (sic) the Petitioners to receive back from the Collector the (sic)-fees.

The facts are as follows:

The Plaintiff Respondent obtained on December 21, 1931, a (sic) decree for partition and for accounts and for certain (sic) dental reliefs. On December 13, 1935, a commissioner for (sic) was appointed. The commissioner submitted his (sic).

Objections to the report were filed by the Plaintiffs and (sic) no. 1. The suit was fixed for hearing on February 21, (sic). On that date, the Defendant No. 1 did not appear, the (sic) rejected the objections to the report of the commissioner (sic) passed an ex parte final decree. The decree was signed and (sic) on July 31, 1947.

Meanwhile, the Defendant No. 1 had filed an application (sic) Order IX, Rule 13, Code of Civil Procedure. The application was (sic) missed on June 21, 1947. Against the said order, the (sic) No. 1 preferred an appeal to this Court, being (sic) M.A. No. 126 of 1947.

During the pendency of the appeal the Petitioner was (sic) Instituted in place of her deceased husband, the original (sic) No. 1. The appeal was dismissed on February 1, (sic).

On May 22, 1950, the Petitioner filed this appeal, being (sic) A.T. No. 227 of 1950. The Petitioner paid court-fees on the (sic) of appeal. As the appeal was filed out of time, (sic) Petitioner filed on February 24, 1950, an application under (sic) 5 of the Indian Limitation Act for extension of time to file (sic) appeal and obtained a Rule, Civil Rule No. 184(F) of 1950. (sic) Rule was discharged on May 9, 1950, on the ground that (sic) Petitioner was not entitled, as a matter of law, to an exclusion (sic) the entire period taken up by the application under Order IX, (sic) 13, CPC and by an unsuccessful appeal (sic) against the order dismissing the said application, as also on the (sic) that the Petitioner did not state specifically when the (sic) husband and the Petitioner were advised by their (sic) that they would be entitled to such exclusion of time.

The present application for a refund of court-fee was filed August 17, 1950.

Mr. Basu, learned advocate for the Petitioner, referred us the decision in the case of J.C. Galstaun v. Janaki Nath Roy (1933) 38 C.W.N. 185. The learned Senior Government Pleader, on the other (sic) referred us to the case of Indu Bhusan Roy Chaudhury Secretary of State for India in Council (1935) 40 C.W.N. 309.

There is an apparent conflict between the principles under lying the two decisions cited, but having given the matter best consideration, I am of the opinion that the principles (sic) down in the latter case should be followed.

The powers of the court to direct a refund of court-fees on memorandum of appeal or on an application for review judgment are expressly provided for in Sections 13 to 15 of the (sic) Fees Act. The contention that the above sections define extent of such power of the court, has been negatived by different High Courts. It is now well-settled that in (sic) cases the courts may direct a refund of court-fees in the (sic) of their inherent jurisdiction even in cases outside Sections 13 to of the Court-Fees Act. Such inherent jurisdiction is founded the principle that every court has inherent power to act ex (sic) justitia, i.e., to do that real and substantial justice for administration of which alone it exists. The power is subject the qualification that there is no room for the application of (sic) inherent power, where there is an express provision negative the claim or where the party has neglected to adopt the (sic) remedy. Ghuznavi v. Allahabad Bank, Ld. I.L.R.(1917) 44 Cal. 929.

Section 151 of the CPC does not formulate new doctrine but merely furnishes legislative recognition of (sic) above well-recognised principle.

In the exercise of the above well-defined powers, the (sic) have directed a refund of court-fees paid in the following case viz.,

(i) where excess court-fees were paid by a party in (sic) of an order of the court, which proceeded on an erroneous (sic) of the law. Girish Chandra Mali v. Girish Chandra Dutta (1931) 36 C.W.N. 190.

(ii) where the party paid excess court-fees, through (sic) or mistake : In the matter of Chaube Munna Lal I.L.R.(1930) 52 All. 546 on mistaken view of the law. Muhammad Reza v. (sic) Singh (1927) 107 Ind. Cas. 320; Vijayalakshmi Ammal v. K.R. (sic) Ayyangar ILR (1933) 57 Mad. 542.

In the above class of cases, the payment of the excess (sic) fees was unnecessary and was not due to the Government and was only fair that the Government should not unjustly (sic). If at the expense of the litigant. The party concerned had, before, an undoubted right to recover money not legitimately (sic) to the Government. A remedy by suit might lie but instead driving the parties to a suit, the court in such cases acted (sic) on an application with a view to do speedy justice between (sic) litigant and the Government.

The above principle cannot, however, be invoked by a party (sic) is required to pay court-fees for getting, the relief, claimed (sic) him. Eventual success or failure to obtain the relief (sic) by him is wholly immaterial in determining his right to (sic) a refund of court-fees. Thus, when a party filed an appeal (sic) became unnecessary, because of his success in some other (sic) e.g., granting of a petition for amendment and then (sic) for refund of court-fees, paid on the memorandum of (sic), the High Court of Madras refused to direct a refund. (sic) re Chidambaram Chettiar I.L.R.(1934) 57 Mad. 1028. Similarly, in a case where an (sic) was settled out of court and was allowed to be withdrawn, (sic) application for refund of the court-fees paid on the memoran-(sic) of appeal was rejected. In re B Kappini Gowdar AIR (1938) (Mad.) 67.

We have thus to see if the Petitioner can get a refund of the (sic) in the light of the above principles. Section 6 of the (sic)-Fees Act requires that the memorandum of appeal cannot be (sic) in court or received by the officer concerned unless there has (sic) paid the proper fee payable under the schedules of the Act. Bengal, the court may receive a memorandum of appeal in (sic) of which an insufficient fee has, been paid under certain (sic).

Section 30 of the Act further provides that the court-fee (sic) must be cancelled before the memorandum is filed.

Order XLI, Rule 1, Civil Procedure, Code, requires that every (sic) shall be preferred in the form of a memorandum and (sic) to the court or to such officer as it appoints in this (sic). Rule 12, Part II, Ch. V of the Appellate Side Rules this Court provides that the memorandum of appeal shall be (sic) in the High Court to the Deputy Registrar or such (sic) person as the Registrar may appoint and the date of such (sic) shall be deemed to be the date of presentation for (sic) purpose of limitation. Rule 13 then provides that no (sic) of appeal, except those filed on the date of (sic) of the High Court after the annual long (sic) shall be presented for admission, unless the same (sic) an office report as to limitation of time and of the (sic) or otherwise of the court-fee stamp. Such report shall ordinarily be endorsed on the memorandum and returned the Stamp Reporter.

Rule 13 further provides that, if the report of the Stamp (sic) porter is that the prescribed period of limitation has expired, (sic) memorandum shall be returned to the party filing it, who (sic) present the same to the Division Court.

Rule 17 prescribes that the officer to whom the (sic) of appeal is presented under Rule 12 shall endorse on every (sic) memorandum the date of the presentation and shall send (sic) same to the Stamp Reporter.

The effect of the rules referred to above is that court stamp should be affixed on the memorandum of appeal before appeal can be presented to the officer concerned, whether (sic) appeal is within time or not. An application u/s 5 of (sic) Indian Limitation Act cannot be made without the (sic) steps required by Rules 12, 13 and 17. The affixing of the court stamps on the memorandum of appeal is, accordingly, an (sic) prerequisite to the filing of the application u/s 5 of Indian Limitation Act. The fact that such an application not succeed, is, as stated already, immaterial in deciding question before us.

In this view, there is no room for the exercise of the (sic) power of the court in the facts of the present case. This (sic) supported by the decision in Sidheswar Chandra (sic) Satya Kishore Banerjee (1937) 41 C.W.N. 1184 and is in consonance with (sic) principle enunciated in Indu Bhusan Roy Chaudhury Secretary of State for India in Council (supra).

In the case of J.C. Galstaun v. Janaki Nath Roy (supra), attention of the court was not drawn to the considerate indicated above. The decision was dissented from in the follow cases. In re Chidambaram Chettiar (supra); In re B. (sic) Gowdar (supra); Indu Bhusan Roy Chaudhury v. Secretary (sic) State for India in Council (supra); Sidheswar Chandra (sic) Satya Kishore Bamerjee (supra) and is, in my opinion, (sic) well recognised principles regulating the exercise of the (sic) powers of the court in the matter of refund of court-fees. (sic) the case of In re Narayan Reddi AIR (1942) (Mad.) 31 the court (sic) refund of court-fees paid on an application for review of (sic) order rejecting a plaint, on the ground that the court-fees (sic) not meant to be utilised until the petition for review (sic) accepted by the court. Such a ground is, in my (sic) untenable as it would entitle all unsuccessful parties in suits appeals to get a refund of court-fees. As already pointed (sic) real test is whether payment of court-fees was necessary for initiation of the proceedings irrespective of the fact whether said proceedings succeeded or not.

My conclusion, therefore, is that the Petitioner is not entitled the reliefs prayed for by her. The application is, accordingly, missed but in the facts and circumstances of this case we (sic) that the parties do bear their own costs.

Das Gupta, J.

I agree.