Dr. Kirpa Ram Sud vs Rajkumar Rajindr Singh

D.B. Lal, J.—This is an application by Dr. Kirpa Ram Sud Plaintiff for refund of the amount of Rs. 1,127.60 N.P. which arc stated to have been paid by him in excess, in the shape of stamps submitted in payment of Court-fee for the suit. The Plaintiff filed this suit for recovery of Rs. 68,765 as the amount payable to him by the Defendant on the basis of a pronote stated to be executed by the Defendant in favour of the Plaintiff. The Plaintiff submitted the Court-fee stamp of the value of Rs. 4,534.40 N.P. and according to the report of this Registry, he has paid Court-fee in excess, although the amount specified by the Registry for Court-fee to which the Plaintiff was liable, is Rs. 3,027.20 N.P. It is, however, slated in the application on behalf of the Plaintiff, that the amount due was Rs. 3,406.80 N.P. The Plaintiff has submitted that Rs. 1,127.60 N.P. have been paid in excess in the shape of Court-fee stamp and therefore his prayer is that the said amount be refunded to him. The application is moved u/s 151, Code of Civil Procedure, in exercise of the inherent jurisdiction of the Court.

It is contended on behalf of the Collector, Simla, represented by Shri R.K. Punshi, Advocate, that the application is not maintainable u/s 151, Code of Civil Procedure, as the case, according to the learned counsel, rather relates to the Punjab Stamp Refund, Renewal and Disposal Rules, 1934 (hereinafter to be referred as the Renewal and Disposal Rules). According to the learned counsel, no satisfactory explanation exists as to why the Court-fee was paid in excess than what it was due. The explanation offered by the Plaintiff that his learned Counsel was away from Simla for sometime, is not a good excuse for miscalculation or for payment of Court-fee in excess. The learned counsel, therefore, submits that instead of granting refund to the Plaintiff, the application needs dismissal so far as this Court is concerned.

The main contention between the parties does not seem to rest on any particular excuse taken by the Plaintiff as to why he paid so much amount in excess than what was due from him by way of Court-fee upon the plaint which was obviously a document required to be affixed with proper stamps. The contention seems to be, as to whether the Renewal and Disposal Rules apply to the case at this very stage, so that the application u/s 151, Code of Civil Procedure, is not maintainable and the Plaintiff can be asked to approach the authorities prescribed under these Rules to grant him the payment of the Court-fee. It has to be understood that payment of Court-fee is a subject which concerns the Courts. Regarding the renewal and disposal of stamps, the subject does not obviously relate to Courts, rather it relates to the executive authorities and elaborate rules for that purpose are prescribed which are the Renewal and Disposal Rules of 1934 applicable to this State. Therefore, the question of the refund of Court-fee would be an essential question for determination by Court and not by any authority prescribed in the Renewal and Disposal Rules 1934. It is only when this Court gives a finding that Court-fee has been paid in excess and that the Plaintiff is entitled to a refund of such Court-fee, the question would arise as to whether the stamps submitted by the Plaintiff have in any manner been disposed or spoiled so that provisions of the Renewal and Disposal Rules, 1934, apply to such stamps and as to whether the actual refund is to be made by the authorities or stamps are to be replaced by them in whatever manner they think best. It is only at that stage that the Renewal and Disposal Rules, 1934, will have their relevance.

In this view of the matter, I do not consider that the application of the Plaintiff can be thrown out merely on this ground that Disposal and Renewal Rules of 1934 have been in force and that the subject of stamps has been dealt with in these Rules so far as their disposal and renewal is concerned. The learned Counsel for the Plaintiff has relied on a number of decision wherein it has been held that an application u/s 151, Code of Civil Procedure, is very much maintainable in a case where excess Court-fee is paid and a refund is sought by a person paying the Court-fee.

In Aya Singh Tirlok Singh v. Munshi Ram Alma Ram AIR 1968 Del 249 a case for refund of Court-fee was considered. It was found that under a bona fide mistake or impression, the counsel paid Court-fee in excess. The refund was allowed u/s 151, Code of Civil Procedure, and a certificate was granted to the Petitioner for getting a refund of such Court-fee. In that case, the learned Judges also stated that apart from the provisions of the Court-fee Act, a refund is permissible under the inherent powers of the Court u/s 151, Code of Civil Procedure. In view of the affidavit submitted by the Plaintiff, it is not difficult to hold in the instant case that the excess Court-fee was paid under a bona fide mistake or inadvertence. Similarly in a Full Bench decision of Punjab High Court in Jawahar Singh Sobha Singh Vs. Union of India (UOI) and Others, inherent powers of the Court u/s 151, Code of Civil Procedure, were exercised and refund of Court-fee granted. In that case, it was also observed that the provisions of the Court-fee Act for a refund only apply to such cases where the fees is paid under the provisions of that Act and circumstances subsequently arise when a refund is to be granted under the provisions laid down in the said Act. In this case, it cannot be stated that any question of refund of Court-fee has arisen because of the application of any provisions of the Court-fee Act. Rather a refund is being asked because excess payment has been made under a bona fide mistake or because of miscalculation.

Therefore, in my opinion, the Plaintiff is entitled to a refund of excess Court-fee which he has claimed in this petition. He can be granted a certificate for such refund which shall be made to him subject to the rules.

The application is, therefore, allowed.