Jagdesh Chowdhury vs Radha Dubey

This is an application on behalf of an unsuccessful appellant to recover the Court-fee filed with his memorandum of appeal in a second appeal to this Court. Apparently at first the appellant was under the impression that the appeal was an appeal from an order and he was proposing to pay a Court-fee of Rs. 4, but on further consideration he in fact paid a sum of Rs. 382-8-0 which was the proper Court-fee payable upon an appeal in such a case. When the matter came before this Court his appeal was dismissed on the ground that in the circumstances no appeal lay from the decision of the lower appellate Court. The appellant now asks that the Court should refund the Court-fee of Rs. 382-8-0 upon two grounds. In the first place he says that the stamp reporter, when he was about to file his appeal and pay the Court-fee of Rs. 4, advised him that this was not an appeal from an order but really an appeal from a decree, and that therefore he had better pay the Rs. 382-8-0 and the appellant took that advice. It was purely optional to the appellant whether he paid the Rs. 382-8-0 or whether he took a firm stand and supported his own opinion, if he really ever had any strong opinion in the matter, that the proper appeal open to him was an appeal from an order. He might have insisted upon paying the fee of Rs. 4. and prosecuting his appeal as one from an order. Of course he would take the risk of having it dismissed on the ground that it was not in fact an appeal from an order. He, however, thought better of it and it does not seem to us, merely because the stamp reporter had given him some friendly advice about the matter which he took without question, that that is any ground for refunding the fee. The matter was entirely one for the discretion of the appellant himself.

The second point urged is that in fact he might have treated this case as one in revision and applied in revision for an order setting aside the decision of the lower appellate Court and, had he done so, in that case the only fee he would have had to pay would have been a fee of Rs. 3. It seems to us that the short answer to the case is that he did not treat the case as one in revision. He. did not apply in revision and there is no reason to suppose that had he done so he would have been any more successful than he was in fact by going before the Court in appeal; appellant deliberately chose to bring an appeal from a decision of the lower appellate Court. The question was one for him. Having instituted his appeal he was entitled to have it treated as an appeal and to raise all the points which might be raised in an appeal and not only the points which might be raised in a case of revision. In the latter case the question would be restricted to one of jurisdiction. In an appeal the points open to him would include not only jurisdiction but all questions of law.

He chose that course and he alone is responsible for it and he alone must bear the consequences if he fails. We have been referred to the case of Chandradhari Singh v. Tippan Prasad Singh [1918] 3 Pat. I.J. 452 where it was laid down that the High Court has inherent power to make an order directing the taxing-officer to issue the necessary certificate to enable an appellant to apply to the revenue authorities to obtain a refund of an excess Court-fee paid on a memorandum of appeal. We do not for a moment wish to question in any way the property of the decision in that case to which one of us was a party and we have no doubt whatever that the Court has inherent power in proper cases. This, however, does not seem to us to be such a case.

The application for revision must be dismissed.