(1) Aya Singh, defendant in the trial Court, presented an appeal in this Court from an order of the learned Additional District Judge dated 18-9-1967 allowing the appeal of Munish Ram plaintiff and after setting aside the judgment and decree of the trial Court, remanding the case back to the Court of First instance for re-decision. By mistake an appeal was presented in this Court as a regular second appeal from a decree on which court-fee of Rs. 686.30 Paise was affixed. The office note shows that an inquiry was made from the counsel for the appellant as to how a regular second appeal lay against an order of remand. To this the counsel replied that the appeal may be treated as an appeal from order and may accordingly be registered as first appeal from order. The office, without Realizing that it was, as a matter of fact, a second appeal, for it was the second appellate jurisdiction of this Court which was being invoked, registered the appeal as an F. A. O. Instead of an S. A. O.
The appeal was on his basis marked before a Division Bench for preliminary hearing. The learned counsel for the appellant, when re-presenting the appeal with a request that the same may be treated and registered as an F. A. O., also presented an application u/s 13 of the Court-fees Act read with section 151, Code of Civil Procedure, praying for a refund certificate in regard to the Court-fee paid in excess on the ground that the excess court-fee on the memorandum of appeal was affixed under a mistaken and bona fide impression. It was stated that on a memorandum of appeal from an order, a court-fee of only Rs. 5.25 was payable, whereas in the case in hand, court-fee of Rs. 686.80 was paid under a bona fide mistake.
(2) When we heard the appeal at mtoion stage on 1-12-1968, we felt that there was no merit in the appeal, but left there was no permit in the appeal, but left the appeal pending and issued notice to the Central Government counsel in Civil Miscellaneous No. 45-J of 1968 for 8-2-1968. On that date, we heard arguments for both sides and reserved orders. The learned counsel for the appellant-petitioner has placed his reliance on a Full Bench decision of the Punjab High Court in
Shri Mohindra has, however, also relied on
(3) Turning first to the Full Bench decision of the Punjab High Court in
"Is the power of a Court to remit or refund Court - fees confined only to fees illegally or erroneously assessed or collected or does it extend also to fees which have been paid or collected in accordance with the provision of the Court - fees Act?"
Obviously, the Bench was not concerned with the excess court -fee paid under an erroneous impression. It was assumed there that the Division Bench decision of Punjab High Court in
In Central bank of India v. Thakur Das Tulsi Ram, Air 1933 Lah 135, a learned Single Judge of the Lahore High Court upheld the inherent power of the Court both to remand a case not covered by 0, 41 and also to refund Court fee under the inherent power not covered section 13 of the Court - fees Act. Reference for a precedent to the same affect was made to Mt. Gendo v. Radhe Mohan, Air 1932 Lah 219, where Tek Chand, J. Had observed that a Court remanding a case u/s 151, Civil P. C. Is equally competent to order a refund of Court - fee paid on the memorandum of appeal. In Jan Mohammad v. Amolak Ram, Air 1936 Lah 301, the court-fee paid on an appeal which did not its and was converted into a revision was ordered to be refunded to the party concerned.
In
(4) The Court-fees Act has no preamble, but it has obviously been enacted to secure revenue for the benefit of the State. The rate at which court-fee is to be paid is determined by the Court-fees Act and it is well recognised that unless the liability to pay court-fees is clearly supportable on the plain statutory language a suitor is not obliged to pay any court-fee. It is on this basis perhaps that inherent power of the Court is recognised to direct refund of excess court-fee paid either under compulsion or under a bona fide but erroneous impression, if the cause of justice so demands. It is true that the Court-fees Act has made certain provisions for refund and it may be argued that the legislative intent should be held to exclude refund in other cases, but the formidable array of authorities upholding the inherent power of the Court to direct refund ex debito justitiae, impels us also to uphold the inherent power.
It must, however, be clarified that it is not every excess payment of court-fee which must be refunded as a matter of course. Apart from the mandatory provisions, the Court, in order to exercise its inherent power, has to consider the facts and circumstances of each case and come to a judicial determination whether or not the cause of justice requires refund.
In the case in hand, it appears that the appellant''s learned counsel, who does not seem to be regularly practicing at the bar of this Court, erroneously thought that the remand order was equivalent to a decree and on this impression paid court-fee very much in excess of the amount prescribed, treating the appeal to be from a decree. We are satisfied that in this case, this impression was due to a bona fide mistake. We accordingly direct that a certificate should issue for refund of the excess of court-fee paid, as prayed in the application. We consider it proper before concluding to emphasise that this case is not to be considered is precedent for refund in all cases of excess payment merely because of the ignorance of the counsel, for, it is the duty of the counsel accepting briefs in this Court to be fully informed of the legal position and each case will have to be considered on its own merits.
(5) As directed earlier, let the requisite certificate issue.
(6) Refund ordered.
