1980 PLP 1775(2) (CLC)

The plaintiffs filed a suit for recovery of Rs. 32,960 and for the purposes of jurisdiction and court-fee valued the suit as follows "(a) For recovery of damages at Rs. 82,800. (b) For recovery of price paid Rs. 48,000. (c) For recovery of interest at Rs. 2,160." However, plaintiffs valued the reliefs for recovery of amount mentioned above separately for the purpose. of court-fee and paid the court-fee in the total sum of Rs. 4,

025. They however, subsequently made an application under section 13 of the Court Fees Act read with section 151, C. P. C. claiming that according to law they were liable to pay court-fee of Rs. 2,455. as they by mistake calculated the same on each relief separately although they were entitled to calculate the same on the total amount and accordingly prayed for refund of the excess amount of Rs. 1,

570. This application came up before Mr. Justice (now retired) Ghulam Rasul Shaikh and his Lordship was pleased to dismiss the same by the following short order passed on 6-4-1970. "There is no provision in the Court Fees Act for refund of the amount as conceded by the learned counsel. I am afraid section 151 C. P. C. cannot be invoked. Application is rejected." Aggrieved by the aforesaid order the plaintiffs went up in Inter Court Appeal, being L. P. A. No. 100 of 1970, which was allowed by the judgment dated 24-9-1979: It was observed by their Lordships . of the Division Bench. that the present case did not fall under the provisions of the Court Fees Act providing refund of the court-fees .for this was a case of payment of excess court-fee -by mistake, on plaint. However, after referred to Hirabat Burjorji Cowasji v. Fakir Mahmed Vali Mahmed Khoia (A.I R 1927 Sind 192), Chindombarair, Chettiar (A I R 1934 Mad 566), Province of Madras v. Xalavakutu Audemma and others (A I R 1949 Mad. 895) and Vishnuprasad Narandas Mod! v. Narandas Mohanlal Modi (A I R 1950 Bom. 4) from the Indian jurisdiction, observed as follows :- "It is therefore observed that this view has been consistently taken by the Courts that apart from the cases where the Court Fees Act provides' specifically for refund of excess court-fees under sections 13, 14 and 15 of the Court is competent under section 151, C. P. C. to order refund in cases. (1) where Court Fees Act applies, (2) where is an excess payment by mistake, or (3) where on account of mistake of a Court a party has been compelled to pay court-fees either wholly or in part." "In the instant case also excess court-fee has been paid under a bona fide mistake, as section 17 of the said Act clearly prescribes as to how the amount of the court-fees is to be computed and due to inadvertence excess court-fee has been 'paid which ought to be returned to the party concerned. It would not serve the ends of justice if it is said that since in section 17 of the Court Fees Act there is no specific provision for refund of the excess court-fees cannot be ordered by the Court to be refunded." And accordingly remanded the case to this Bench for decision of the application in accordance with law. ' It is not disputed by the learned Assistant advocate-General, Sind that the amount of court-fee paid by the, plaintiffs was in excess by Rs. 1,

570. It is also not questioned that the excess court fee ill this case was paid by mistake and so is also the finding of their Lordships of the Division Bench as quoted above. I may also refer to a decision of a Division Bench of Calcutta High Court in Indu Bhusan Roy Choudhury v. Secretary of State (A I R 1935 Cal. 707). In this case Henderson. J., at page 708 of tile report observed :

"I should certainly not be prepared to hold that the Courts have no jurisdiction to grant relief in suitable cases, though there may be some doubt as to the precise form, which the relief ought to take, This matter was considered by the Madras High Court in case reported in I L R 55 Mad. 641 Thammyya Naidu v. Venkataramanamma, A I R 1932 Mad.

438. In that case the petitioner had paid excess court-fees. Judges held that it would be unjust and unreasonable for he learned the High Court to refuse to assist him to recover them and grant him a certificate to the effect that excess court-fees had been paid leaving it to the revenue authorities to decide whether a refund should be made or not. With that decision: I respectfully agree. I am not prepared say that the particular form of certificate provided for to section 13, 14 and 15, Court Fees Act, ought to be granted in cases which are altogether outside the scope of the Act. I should therefore be prepared to grant the petitioner a certificate to the effect of that he ought to be granted a refund provided that he could persuade us that his petition has any merit in it. In the same case of Nasim Ali, at page 708 observed:

The present application admittedly is not covered by section 13, 14 and 15 of the Court Fees Act. We are asked however to issue a certificate under the inherent power of the Court. The learned Senior Government pleader contends that the court has no power to issue certificate apart from the provisions of the Court fees act. The reported cases however show that this Court as well as other High Courts has issued certificate under two inherent power of the Court in cases of Thammyya Naidu v. Venkataramanamma 1932 Mad. 438 =139 I C 131 -55 Mad. 641 =61 M L J 541 where excess court-fees have bin paid by inadvertence= 14 . W R 49, .40 Cal. 365 and 52 All 546, Gastaun G. C. v. Janaki Nath, 1934 Cal. 615 =152 1 C 215=38 C W N

185. Where a litigant has made excess payments under an erroneous view of the provisions of the Court Fees Act 55 Mad. 641=57 Mad. 542 Vijvalakashmi Ammal v. Srinivasa Ayyangar 46 I C 271, Chandra Hari Singh v. Tipan Prosad Singh and 107 I C 320 Muhammad Reza v. Rajballabh Nath Singh Ameeroonissa v. Woomaroo din Muhammad (1870) 14 W R

49. Where the Court has realized excess court-fees on an erroneous interpretation of the section of the Court Fees Act=36 C W N 190 Girish Chandra Mali v. Girish Chandra Dutta 107 I C 825 and Sasi Bhuran Majumdar v. ?Ilanik Lal Chandra. The principle underlying these cases seems to be that Government should not profit by the mistake of a litigant or of a Court as to the amount of court-fees payable under the Court Fees Act, and in cases of such mistake the Court should order refund for ends of justice. This is an intelligible principle. Government cannot reasonably object to refund the excess as it is not legitimately due under the statute." The learned Judge further reasoned in the above cited case "if the litigant is made to pay fee in excess of what he is liable to pay under the Statute, the Statute does not stand in the way of refunding such excess fees as it never authorised the receipt of such excess. Iih such cases the litigant has got the right to get a refund because the excess is his money and has by mistake or inadvertence passed into the hands of Government." Now, therefore, the question is what order should be made: Court has no powers to directly order the Government to refund the amount of excess court-fees. In such cases according to precedents Court issues certificate to the party who has paid excess court-fee to enable him to apply to the Revenue Authority for refund of the same. I may here first refer to a decision of our own Court in Messrs British India Engineering Works, Karacki v. Messrs Globe Navigation Ltd., and 2 others (P L D 1978 Kar. 375) wherein my learned brother S. A. Nusrat, J., relying on Firm Hari Ram & Sons and another v. H. D. Hay (A I R 1939 Lah. 257) in which reliance has been placed on a decision in Muhammad Sadiq Ali Khan v. All Abbas (A I R 1933 Oudh 170) and also on a decision of Madras High Court in the case of In re : Vendaranyaswarni Derasthanam (A I R 1942 Mad. 464) held that "In my humble opinion this last judgment adequately meets the situation inasmuch as in absence of any power to grant a certificate, as contemplated in sections 13, 14 and 15 of Court Fees Act, the safest course to be followed seems to be to grant declaration that excess court-fee was paid by the party, thus enabling him to move the Revenue authorities for the grant of refund." I may also refer to a Division Bench decision of Lahore High Court in Jawala Singh and others v. Ghulam and others (A I R 1933 Lah. 351) wherein it was held that 'where court-fee has been paid by a bona fide mistake the proper course is to grant to the party a certificate which will enable him to obtain refund from the Revenue Authority. Following the decision of their Lordships of the Division Bench than the plaintiffs have by mistake paid excess court-fee in the amount of Rs. 57 and that this Court under its inherent powers has jurisdiction to Brant a certificate to that effect I direct that a certificate to the above effect! be issued to the plaintiffs to enable them to apply to the Revenue Authority for refund of the amount of excess court-fee paid by them. M. Y. M. Certificate issued.