Mahadeo Ganesh vs Keshav Khanderao and Others

Chaturvedi, J.—The Petitioner-Appellant came in appeal to this Court against a preliminary decree for partition and he paid a court-fee of Rs. 15/- only, under Article 11 of the Indore Court-fees Act. The matter came before Justice Rege who took the view that the Appellants were liable to pay ad valorem court-fee on the value of their share. This Appellant-Applicant valued his share at Rs. 6000/- and paid the requisite court-fees. After some years the matter came be fore a Division Bench to which I was a party. The Division Bench on 14-7-1950, held that the Court-fee of Rs. 15/- paid on the memorandum of appeal by Mahadeo and Ranganath was sufficient as a partition suit comes under Clause (6) of Article 11 of the Indoor Court-fees Act. The Appellant now comes for a re-fund certificate of stamps of Rs. 391-4-0 which had been over-paid.

There is no doubt that the Applicant-Appellant is entitled to the refund of the court-fees paid by him under an erroneous order of this Court. It was held by a Division Bench of the Bombay High Court in Vishnuprasad Narandas Modi Vs. Narandas Mohanlal Modi, where the payment of excessive court-fees was due to the fact that under the earlier decisions of the Court suit for partition and the appeals arising therefrom were wrongly treated as falling u/s 7(5) Court-fees Act, it would be open to the Court to grant a certificate to the Appellant entitling him to a refund of the court-fees amount paid by him in excess. I am in respectful concurrence with this view.

It was pointed out in this ruling that even in cases not covered by Sections 13, 14 and 15 of the Court-fees Act, 1870, the Court can, u/s 151 of Code of Civil Procedure, order refund of court-fees paid in excess either by mistake, inadvertence or by oversight. This view is in consonance with that taken by other High Courts: See Mul Chand and Another Vs. Official Receiver and Others ; In re, In Re: Narayana Reddiar, and Girish Chandra Mali and Another Vs. Girish Chandra Dutta and Others, . The Allahabad add Madras rulings had been followed by an earlier Bombay decision in Ahmed Ebrahim Vorajee Vs. The Government of The Province of Bombay,

Mr. Patel, learned Deputy Government Advocate, urges that the same view has not been taken by a Division Bench (Chagla C. J. and Gajendragadkar J.) of the Bombay High Court in a recent ruling reported in Karfule Ltd. Vs. Arical Daniel Varghese, The facts of this case are distinguishable. Court-fees in this case had not been paid either by inadvertence, oversight or by mistake. The refund was sought on the ground that the appeal was withdrawn before it was heard by the High Court. It was contended that the judicial machinery which functions when a litigant comes to the Court did not function in the appeal fully and, therefore, a part of the court-fees ought to be refunded. Repelling this contention, it was observed by the High Court:

Now, we think, as a general principle of law, it cannot be disputed that a Court has no power u/s 151 to circumvent the provision of law. If the Legislature has cast a particular obligation upon a citizen, it is not open to the Court u/s 151 to exonerate the citizen from that liability or to reduce the quantum of that liability. Law must be given effect to, and the Court cannot be a party to the contravention of that law by exercising its supposedly inherent powers u/s 151.

Therefore, if there was a legal obligation upon the Appellant to pay the court-fees before they could prefer an appeal to this Court, the mere fact that the appeal, was compromised out of Court and was with-drawn and not heard by this Court, cannot exonerate the Appellants from paying the court-fees, nor can they contend that they are liable to pay less court-fees than what the law lays flown is the proper court-fee. Undoubtedly, the Court has, as we shall presently point out exercised inherent jurisdiction u/s 151 to order refund of court-fees in cases not covered by Sections 13, 14 and 15.

But when we look at the principle underlying these cases, the principle is clear in all of them. There may be cases where a litigant pays court fees which he is not liable to pay under the Court-fees Act. The payment may be made either by inadvertence, oversight or mistake. Under these circumstances, the Court orders the revenue authorities to refund either the whole of the court-fees or the excess which was more than what the law required.

But the principle which is clearly deducible from these cases is that, as there was no legal obligation to pay the court-fees or the excess which was paid by the party, the Court orders, in substance, the law to be carried out, and not to increase the liability upon the litigant. But this principle cannot be extended in support of a litigant who has paid the court-fees for which, in law, he was liable, but who, because of certain circumstances, feels that equitable considerations require that he should not be asked to pay either the full court-fees or part of the court-fees.

It will be manifest that even in this case it has been taken for granted that the principle is well-established that Courts have inherent powers to re-fund the court-fee paid in excess by some mistake or inadvertence or under some wrong order of a Court of law.

I would, therefore direct that a certificate should be issued in favour of the Appellant authorising him to claim refund of the excess court-fees paid. on his memo of appeal.