1980 PLP 773 (CLC)

SAJJAD ALI SHAH, J.--This Letters Patent Appeal has been filed against the order of the learned Single Judge of this Court in Suit No. 204 of 1969, whereby prayer in the application under section 151, C. P. C. for refund of excess court-fees has been rejected. Brief facts are that appellants filed a suit for recovery of Rs. 1,32,960 and for the purposes of jurisdiction and court-fees the suit was valued as under :-- (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. The appellants inadvertently valued the reliefs for recovery of amount mentioned above separately for the purposes of court-fees and paid court fees in the total sum of Rs. 4,025 whereas under the .theme of section 17 of the Court Fees Act, 1970. the appellants were liable to pay court-fees on the aggregate of Rs. 1,32,960 which comes to Rs. 2.455. After realizing excess in payment of court-fees, the appellants made an application under the section 151, C. P. C. to the Court for refund of Rs. 1,570 which was paid erroneously in excess. The learned Single Judge passed order on this applica tion .which is reproduced as under :-- "There is no provision in the Court Fees .pct for refund of the amount as conceded by the learned counsel, I art, afraid section 151, C. P. C. cannot be invoked. Application is rejected." There is no dispute about the fact that Court Fees Act, 1870, specifically allowed refund under sections 13, 14 and

15. Section 13 relates to refund of fee paid on memorandum of appeal, section 14 relates to refund of fee on application for review of judgment and section 15 relates to refund where s or modifies its former decision on ground of mistake. in the Court reverse instant case section 17 of Court Fees Act, which relates to multifarious suits and it provides that where a suit embraces two or more distinct would apply the plaint or memorandum of appeal shall be chargeable with the subjects, mount of the fees to which the plaints or memorandum of appeal, aggregate a separately each of such subjects, would be liable under this in suits embracing Act. There is no specific provision in it for refund of excess court-fees paid erroneously. The question arises whether section 151, C. P. C. can be invoked in the circumstances as stated above when the Court Fees Act does not provide in section 17 for refund of excess court-fees paid under a bona fide mistake. For this purpose the scope of section 151, C. P. C. is to be con sidered. Section 151 of the Civil Procedure Code envisages inherent powers of the Court and provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court. There is no dispute about the fact that under this section of the Code the Court can pass such orders as it thinks necessary to render justice to all the parties before it which are necessary for the ends of justice or to prevent abuse of the process of Court. In Hirabai Cowasji v. Faqir Muhammad (A I R 1927 Sind 190) it was held that a Court has jurisdiction to order the issue of a certificate to enable the plaintiff to apply to the revenue authorities to obtain a refund of the excess court fee paid under a bona fide mistake. Subsequently in the case of Chindambaram Chittiar (A I R 1934 Mad. 566) it was held that the Court can order a refund (1) where Court Fee Act applies, (2) where there is an excess payment by mistake or (A I R 1949 Mad. 895) where on account of mistake of a Court a party has been compelled to pay court-fees either wholly or in Part. Outside these cases tl:e Court has no authority to direct a refund. Applicability of section 151, C, P. C. in such cases to order refund of excess court-fees in the cases not provided under sections 13, 14 and t5 of the Fees Act is reiterated in the case Province of Madras v. Kalavakuru (3) Court wherein further the view taken in the case of Chindambaram Chettinr has been whet . Subsequently in the case Yishnupracad Modi v. Naranda., Mohanlal followed 14 and Modi (A I R 1950 Born. 4) it was held that even in cases not covered by sections 13, 15 of Court Fees Act, the Court can under section 151, C. P. C. order refund of court-fees paid in excess either by mistake, inadvertence or oversight. It is therefore obvious that this view has been consistently taken by the Courts that apart from the cases where the Court Fees Act provides speci fically for refund of excess court-fees under sections 13, 14 and 15, the Court is competent under section 151, C. P. C. to order refund in cases (1) where Court Fees Act applies, (2) where there is an excess payment by mistake or' (3) where on account of mistake of a Court a party has seen 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, the excess court-fees cannot be ordered by the Court to be refunded. The present case is also covered) under category second providing for cases where there is an excess payments by mistake as held in A I R 1934 Mad. 566 and the inherent powers of the Courts under section 151 can be invoked to rectify this bona fide mistake to make an order for refund. It appears that the rulings mentioned above which support this view of the matter were not brought to the notice of the Court. It would be fair to give an opportunity to the appellant to cite the case-law in support of the submission made on his behalf, before the learned Single Judge. We therefore, set aside the impugned order and remand the case for decision of the application under section 151, C. P. C. in accordance with law. There will be no order as to costs. M. Y. M. Petition dismissed.