Chandaji Khubaji and Co. vs State of Andhra

Viswasnatha Sastry, J.—T. R.O. No. 14 of 1956 is an application filed'' on behalf of the Assessee for revision of the order of the Sales-tax Appellate Tribunal in Tribunal Appeal No. 120 of 1955. When the case came on for hearing before us, Sri. N. Rajeswara Rao, the earned- advocate for the Petitioner represented that the-Revision Case might be dismissed as withdrawn. Simultaneously with this representation, he, presented a Civil Miscellaneous Petition graying that a certificate may be granted to the Petitioner that the Court-fee stamp of Rs, 100 affixed to the memorandum of revision "had been ''defaced by the High Court in the usual course of routine and that the amount of the stamp might be refunded to the Petitioner by the Collector After deducting one anna in the rupee." In support of this prayer Sri Rajeswara Rao cited the decision of Satyanarayanaraju v. in C. M. P. No. 5776 of 1055 (A), where the learned Judge made an order in S. A. No. G26 of 1955 in the ''terms now prayed for by the Petitioner. No reference is made in the order of the learned Judge to any statutory provision or precedent justifying it.

Sections 13, 14 and 15 of the Court-fees Act do not obviously apply to the case of the withdrawal of an appeal or a revision petition. The question may, however, arise and has arisen, Whether the Court has got inherent power to grant refund of Court-fee in cases not falling within the provisions of the Court-fees Act.

In Thamayya Naidu v. Venkatarama-namma, ILR 55 Mad 641 : AIR 1932 Mad 438 (A1), the learned Judges found that the Appellant before the High Court had paid ad valorem Court-fee of Rs. 2,332-7-0 in a land acquisition appeal by mistake, when all the Court-fee that he need have paid was Rs. 500. The Appellant applied for a refund of the excess Court-fee paid by him. The Court overruled the objection of the Government Pleader that there was no power in the Court to go beyond the provisions of Sections 13, 14 and 15 of the Court-fees Act which allowed a refund of the Court-fee only in certain cases and that the case before the High Court was not covered by any of those provisions. It was held that u/s 151, CPC Code, the High Court had power to order a refund of Court-fee paid in excess''s under a bona fide mistake. The learned Judges observed as follows:

It would be unreasonable and unjust for the High Court not to assist a party to recover excess court-fee erroneously paid under its own order or under the orders of Courts subordinate to it. Of course what the High Court really does judicially in such a case is to decide judicially what is the proper court-fee and then issue a certificate to the party that execs; court-fee has been levied.

A precise and comprehensive statement of the power of the High Court to order a refund of Court-fee by the learned Judges of the Madras High Court will be found in In Re: Chidambaram Chettiar, , where it was observed:

The Court can order a refund (i) where the Court-fees Act applies, (ii) where there is an excess payment by a mistake or (iii) where, on account of the mistake of a Court, a party has been compelled to pay Court-fees either wholly or in part. Outside these cases the Court has no power to order a refund.

In In re Kappiui (founder, Mil 1938 Mud 67 (C) another decision of Division Bench of the Madras High Court it bad to consider this question of the power of the Court to order a refund of Court-fee in a. case whore an appeal was withdrawn as having been settled out of Court and the Appellant applied for a refund of the Court-fee paid on the memorandum of appeal. After pointing out that the provisions of sections-13, 14 and 15 of the i Court-fees Act did not author refund of the Court-fee in such a case, the. Court declined to make the order in the exercise ox its inherent power. The learned Judges observed:

The Courts have gone to the extent of holding that they can order a refund under their inherent powers, where an excess court-fee has been paid (i) by mistake of party and (ii) in obedience to a wrong order of court. The principle underlying these decisions, if we may say so with respect, is both good law and sound sense. But to go further and hold that a court-S3e, properly paid, can be refunded, would be to render nugatory the express provisions of the Court-fees Act, for, what difference does it make in principle permitting a document to be filed originally without a court-fee and refunding the court-fee already paid? It is elementary that no Court has inherent power to do that which is expressly prohibited by statute.

Reference has been made in In Re: Rachakonda Nagarathnam, , to an unreported decision of Leach, O. J., and Happen, J., in C. M. P. Nos. 4439 to 4442 of 1941. Prom the extract of the judgment given in the case above cited, it appears that the learned Judges followed the earlier decisions of the Madras High Court referred to above and rejected the application for a refund of the Court-fee paid on appeal memoranda not numbered as appeals. In In Re: Rachakonda Nagarathnam, , Panchapakesa Ayyar, J., purported to follow the decisions of the Madras High Court cited above in a case where a memorandum of appeal presented to the High Court had not been numbered, but referred to the party. The learned Judge observed as follows'':

A certificate will be granted to the Petitioner, as requested by him, that the second- appeal was not numbered or heard by this Court and that the appeal memorandum has been stamped with a court-fee of Rs. 149-15-0 and that the Court-fee stamps have been defaced by the High Court office in the usual course of routine,

In that case, the memorandum of appeal was in the state of a return made by the office and it had not been corrected and re-presented and numbered as an appeal.

The decisions of the three Division Benches of the Madras High Court to which we have referred above, are authority for the position that the Court has no power to order refund of the Court-fee in a case where the memorandum of appear has been properly presented to the Court and the appeal has also been registered and numbered by the Court. Thereafter, the appeal could be disposed of only by a judicial order either allowing it or dismissing it either on the merits or because it is not pressed and is withdrawn. In such a case, it appears to us that there is no power in the Court to make an order for refund of Court-fee which would really mean that we are dispensing with the payment of Court-fee on the appeal preferred by the Appellant. There are cases where appeals preferred out of time are dismissed in liming. In such cases, too, it cannot be said that the Appellant is entitled to apply for a refund of Court-fee. The inherent power to make an order for refund of Court-fee must be confined to the cases authorised by precedent and cannot arbitrarily be extended.

For these reasons, we are of the opinion, differing respectfully from the order of Satyana rayana Raju, J. in C. M. P. No. 5776 of 1955 (A), that there is no power in this Court to order a refund of the Court-fee in the circumstances of this case. The petition for refund is therefore dismissed. T. R. C. No. 14 of 1956 is withdrawn and is dismissed.