f^£ HIGH COURT OF CHHATHS6<4RH -4T BILASPf DIVISION BENCH; HON. MR. DHIRENDRA MISHRA HON. MR. b.R. DESHMUKH. JJ. FIRST APPEAL N0. 75 OF 2007 Premiai & others Defendants .-.-rTfff a' Plaintiffs Smt, Basanti Bai Keshwarwani & another <?'- ORDER FOR CONSI&ERATION Sd/- Dhirendra Mishra Judge BLE MR. JUSTICE &.R. DESHMUKH ]; Sd/- DilipRaosahebDeshmukh Judge (-- POSTFOR ORDER ON 10-11-2008 -^ \ \ Sd/- £Z..11.2008 ->-' v V^ HI6H COURT OF CHHATTES6ARH AT BILASPUR NVISION BENCH: APPELLANTS Defendants HON. MR. &HIREN&RA MISHR^ & HON. MR.b.R. DESHMUKH. JJ F.A.NO. 75 OF 2007 1. Premlal, Aged about 57 years, S/o Ramkesh Kesharwgni. 2. Bairoiffl, Aaed about 29 yea.rs, S/o Premlal Kesharwani. 3. Lakhanlal Aaed about 28 years, S/o Premlal Kesharwani 4. Lucky; Aged about !27 years, S/o Premlal Kesharwani 5. Momoj Kumar, aged about 30 years, S/o Chhedilal Keshar'wani. A\\ residents of Near Wdter Tank Kuddudand, Bilnspur, Tshsil and bistrict Bilaspur, Chhattisgarh. Vs RESPON&ENTS Plaintiffs 1. Smt. Basanti Bai Kesharwani, Aged about 59 years, Wd/o Late Kanhaiyalal Kesharwani, R/o Mungeli Naka, Kududand, Biiaspur, Tehsil tind bistrict Bitaspur, Chhattisgarh. 2. State of Chhattisgarh, Through Collector, Bilaspur Chhattisgarh. D.—<*-A ri^seiri i Mr. Ratnesh Aqarwal & M,r. OheeraJ K Wankhede, Advocates for the appellants. Mr. Ramakant Pandey, Advocate for respondent No.l. Mr. N.K. Agarwal, Deput/ Advocate Seneral for respondent No.2/Stdte. Mr. Manindra Shrivastava, Sr. Advocate, Mr. Sanjay 5 Agarwal & Mr. Sanjay K Agarwal, Advocate appear as Amicus Cw'iae.. O R & E, R (Passed on IQ./I 1/2008) l) By this order, the appellants' applications i.e. I.A. No.5, application for withdrawal of the appeal with liberty to prefer civil revision against the impuaned judgment & decree; I.A. No.6, app|ication for refund of court-fee affixed in the first appeal <& I.A. No.T^ ^ L ^ application for per-mission to return certified copy of the impugned iudgmentA decree, are being disposed of. 2) This first appeal is directed against the judgment oind decree dated 11.5.2007 passed in Civil Suit No.38-A/2007 whereby the leamed 3rd Additiona! &istrict Judge, Bilaspur has decreed the suitof the plaintiff/respondent No.l herein wlth cost and directed the defendants/appelbnts herein to restore vacant possession of the suit land/ house & hotel to the plaintiff within a period of one month failinq which the elaintiff would be entitled for dcmaqes Rs.2,000/- oer month. 3V The resoondent No.l/Dlaintiff filed the aboye suit ynder Section 6 of the Specific Relief AcT, 1963 (for short 'Act of 1963') for restoration of possession with specific werments that she was disoossessed from the suit oroDert^ without followinq due Dr'ocess of law on 14.5.1997 and the trial court by impugned iudgment and decree, decreed the suitof the plaintiff, as described above. The aDDsllcints have oreferrsd this reqular first aDoeal aqainst the said judgment and decree under Section 96 of the Code of Civil Procedure, 1908 (for short 'CPC') and have also affixed the court fee of fts.89,800/- in the memo of appeal. This Court yide order dated 30.8.2007 stayed the effect omd operation of the impugned judgment & decree on appellants' depositing money part of the decree with certain conditions. Theapplication for vacating stay by the respondent No.l/ plaintiff wds also rejected on 5.2.2008 and the matter was fixed for* final hearing. Thereafter, respondent No.l yide s • her oiDDlication dated 10.3.2008 (I.A. No.2) orayed for disrpissal of the appeal itse!f on the ground that as per proyisions of Section 6 (3) of the Act of 1963 no appeal lies'against the orderor decree passed in a suit instituted under Section 6 of the Act of 1963. Confronted with the aboye preliminarY obiection, the appellants by the aforesaid applications haye prayed for withdrawal of the apped with liberty to file civil revision and also prayed for refund of court- fee affixed by the appellants in the memo of appeal. 41 The short auestion for deciding the above aoslications is whether the appellamts can be permitted to withdraw first appeal with liberty to file civil revision agninst the impugned judament and decree ond whether while permitting the appellants to withdraw the appeal,the court-fee affixed by thern along with meino of appeal can also be refunded. 5) So far as the question of permission to withdraw the'appeal with liberty to file civil revision is concerned, •t'aking into consideration the provisions of Section 6 (3) of the Act of 1963, the instant appeal is not maintainable and in these circumstdnces, there is no imoediment in oermittina the aDDellants to withdrnw this aDDeal with liber'tf to avail remedies ayailable under the law includina filing of civil revision against the irnpugned judgment and decree in accordance with law. 6} The only questibn that remains to be decided is whether the Appellate Court is empowered to grant to the appellants a certificate authorizinq them to receiye back the full amount of court-fee oaid bv them on the memorandum of aDDieal. 7) Considering the different views taken by the various High Courts in the matter, the Bar was requested to address on this leaal issue and accordingly, Mr. AAanindra Shriyastwa, Senior Adyocate, MP. Sanjay 1 5 Aqarwa! & Mr. Saniav K Aqarwai. Advocates addressed the Court at lenqth and also submitted written submissions. S) Mr. Ratnesh Agarwal & Mr. Wankhede, Adyocatss for the appellants yehemently contended that the appell(ints instead of preferring civil reyision against the impuaned judament and decree inadvertently filed the instant first cippeai, which is admittedly not maintainable in view of sub-section (3)|of Section 6 of the Act of ^1963. The appellants have affixed huge court fee of Rs.89,800/- along with the ^^*"^ e^%. ^ L^ <- v memo of appeal. Though the present case is not coyered by 5ection 13, 14 & 15 of the Court Fees Act, howeyer, the Court can invoke its inherent oower-s under Section 151 of the CPC for refundlnq the court fee dppended with the memo of appeal, which has been filed inadyertently by the appe!!cints. 9) h\r. AAanindra Shrivastaya, Senior Advocate & Mr. Stinjay S Agarwal, Adyocate trayersinq various judqments delivered bv the different High Court on this legal issue submittin9 following propositions;- a) Eyen in cases not covered by Section 13, 14 & 15 of the Court Fees Act, the Court can invoke its inherent power under Section 151 of the Code of Ciyil Procedure to refund the Court Fee paid in excess either by mistake, inadyertence or oyersiqht. However'. the inherent oower of a Court to refund Court pss is confined only to fees which ho.ve been illegally or erroneously assessed or coliected and does not extend to fees which haye been oaid in accordance with the Drovisions of the Courts Fees Act. b) Where the appeal is wittidrawn/ not pressed as having been rendered infructuous, appellantis not entitled to refund of Court Fees paid on the memorandum of appeal. c) Where on aoDeal hayinq been filed and iurisdiction of the ADDeIlate Court hayinq been inyoked and further' 1 Aooellate Court havina entertained the cuDeal and/or passed ony order/interim order coming to the aid of the appellant, refund of Court Fes is not permissible merely because at the staqe of arqument confronted with objection reaarding tnaintainability of the appeal either it is withdrawn or a prayer for>conversion of nppeal into revision is made as the Cour'"t' Ree omd on it seryed its purpose. However, in exceptional case whe.re o. ^-' merporandum of aDDeal was filed, numbered and reqistered but was not oressed for arquments at all the Court did not entertain the appeal nor passed any order . and only prayer was for refund of Court Fees, refurid of Court Fees may be aranted on eauitdble consideration and for doinq Drooer iustice." 10) Mr. Sanjay K Agarwal, Adyocate in his oral submissions as also in the written submissions contended that refund of court-fees may be ordered only undep the continaencies enumerated in Section 13,14 & 15 of the Court Fees Act and none of the continqences enumerated in the above sections exists in the present case. It is settied law that tcu<in9 statute has to be construed strictly. Where the court- fee is oaid as oer Droyisions of the Court Fees Act. the same cannot be dir-ected to be refunded under inherent oowers of the Court as the court fee, which has been iileaally & erroneously assessedor collected con only be ordered to be refunded. It was further submitted that where the aDDellant withdraws his GDoeal, the aODeilate court in the exercise of inherent sowers cannot order refund of court fees. li) Sinnilar arguments were also advanced by Mr. N.K. Agarwat, beput/ Advocate iSeneral for resoondent No.S-State. 12) We have heard learned counsel for the parties at length. 13) In the matter of Arjuna Sovinda V Amrita Keshiba and other-s the bivision Bench of the Na9pur 1-ligh Court hetd that "where becouse of the objection raisedcby the Stamp Reporter the litigant pays additional court fee, which is not leviable the Court can act under its inherent powers to order refund . iA\ Tn thp mnt+e>r n-f finyinirJ &!nm Vc _^t/!+» /ii'irl nth»r<? tho Bench of the Allahabad High Court while dealing with the refund of court fees affixed in the memo of second oppeal by the appellant has • ALK ly56 Nagpm'zsl 2 AIR 1957 AUahabad 734 L held that "where the appellant himself filed second appeal and paid the appropriate amount of court fee on it; he was notinyited, much more less was he compelled by anyone to do so. The appeal wo.s conyerted into revision at a later stage when in the course of arguinents it was contended that it was not inaintainable. A party which files a suit, appeal or application bearina court-fee is not entitled to refund of it when the suit, appeal or oppiication is dismissed on the ground of wcint of iur-isdiction". It was further heid that "mere!y because the court allowed hirp to convert the second appeal into revision, he should not have filed second appeal when it did not lie. If an appeal was withdrawn before any action could be taken on it.it miaht be contended that the court-fee oiid on it was not used at all, but the same reasoninq cannot be adoDted when the cxppeai comes up for argument and an objection about its maintainabilit)/ is heard. There is no question ofapplying the doctrine of un just enrichment because the State has soent some time and labour in disDosina of the aDDeal". !5) I" lt)S "'SttS!" of Mu"."a'Q! and snoths" Vs. Abir Chand the ssppsal was preferred against the conditional money decree. The suit stood dismissed as a result of default in fulfillinq the conditions, thus, the appeal filed by the defendants/oppellants beca.me infructuous. The dppellate court permitted to withdraw the appeal and his application for refundof court fee was referred to the pull Bench for deciding the guestion "whether this Court can in the exercise of its inherent powers order refund of court-fee paid in respect of an ocpeal vuhich has been withdrawn before admission on account of havinq become infructuous? Referring to catena of its earlier judgments in detail, the Ful! Bench of Aliahabad High Court rejected the app!ication for refund of court fee with a finding that in India, the leyy of court-fee is sanctioned bv Statute. It has to be odid as a condition orecedent for AIR 1958 AUahabad 766 ^' <». seeking aid of the Court. The amount to be paidis prescribed by law. Until it is paid, the litigont cannot be heard. Neither the levy nor the amount to be oaid deoends on the result of the Droceedinqs. not even on whether the proceedings are considered on merits or not. If therefore the proper coyr-t-fee hds been paid as required by law there can be no question of its being refunded simpiy because for some reason or the other it becornes unnecessarv to consider the oroceedinqs on merits thouah the court has inherent oowers to dd iustice ond to preyent an abuse of process of the Court. It cannot, howeyer.in the exer'ciseof this oower circumyent the Drovision of law and either relieye the litigant from liability to pay court-fee or reduce the liability. Its duty on the other hand is to enforce the law and to see that it is followed. 16) The FuII Bench of 1-ligh Court of Punjab in the matter of Jawahar SiRgh Sobhs Ssngh vs. Union of India and others has also expressed similar view that the inherent powers to remit or refund the court-fee is confined oniy to fees which have been illegally or erroneously assessed or* collected, and does not extend to fees which have been paid or coliected in accordance with the provisions of the Court-fees Act. 17) In the matter of Sarmanlal yadav Vs. Jabalpur Town Improveinent Tr'ii5+ .J'obGlsur 'rifss Diyssion ^snch o'f .^A.P. Hioh Court h.GS he!d thctt in cases not coyered by section 13, 14, & 15, Court Fees Act, the Court can under section 151. Civil Procedure Code order refundof court-fees paid in excess eith&r by mistake, inadyertence or oversight. 185 In the matt-er of The Official Receiver. Cojinbatore, Vs. 5.A. Ramaswami Sounder and others the Full Bench of Madras High Court while considering the scope of exercise of inherent power under Section 151 of CPCin the mattersof refund of court-fee has ~ AiR 1958 Punjab 38 31979 M.P.L.J. SlhortNote-4 6AIR1980Madias269 <s?si<2:i''*tts^: '^^ ^:'^e^ ^^ ^ <• held that the powers under Section 151 of theCPC can be inyoked by the Court for gromting refund of court-fee only in cases where excess court fee has been paid underorders of Court which orders are subseguently reversed or set aside, for in such cases the court is bound to rectify its own mistake in calling upon the party to pay the court-fee which he is not bound to pay undsr the law. The power under Section 151 of CPC is a judiciat oower and not an administratiye or ininisterial Dower. The issuonce of a certificate that the court- fee was affixed but that it was not utilized as the sr'oceedinq was withdrawn ccinnot, in any sense, be sttid to constituts the exercise of iudicial oower. 19) The Diyision Bench of AA.P. High Court in the matter of Kiran Eiectricals. Indore Vs. State Bank of Indore and another has also held that the inherent powers of the court to refund the court- fee is confined only to fees which has been illegally or erroneousiy assessed or collected and does notex.tend to feeswhich has been Daid in accordouice with the Drovisions of the Court-fees Act. Hence in a case of remission under Order 41 Rule 23A of the CPC, the court fee oaid on tha inemorandum of oBDeal cannot be refunded eyen in exercise of the inherent oowers 6f the Court under section 151. In the inatter of Rajee Enterprises (M/s) V. Stat®Bank of India the Divisson Bench of M.P. High Court has held that refund of court-fee can be ordered only under provisions of Section 13 of the Court Fees Act, 1870. i In the latest judgment in<the matter of Ranilat Vs. State of M.P ths DiyiSiQp. Bsnch of AA.P. HiGh CoLirt h&s furthsr rsiter'ctsd that the principles with regard to refund of court-fee is that when there is no legal obligation to pay the court-fees the Court orders, in substcnce, the law to be carriedout, and not to increase the liability upon the litiaant. But the principle canhot be extended in support of ' 1983 M.P.L.J. 66 81998 (II)M.P.W.N.NoteNo.l33 920021(3)M.P.H.T.(DB) 15.1 <i€3~:'°^ g B- 1 ^9/ !vp^y "%'ass3s»i" ^ /.; ;^ Q alitigant who has paid court-fees for which, in law, he was liable, but who, because of certain circumstoinces feels that equitable considerations r'eauire that he should not be asked to DOW the Court- 20) We are in respectful agreement with the law laid down in the Full Bench decisions of AItahabad, Punjab &. Madras Hi9h Courts that where proper court-fee has been paid, as required under the law, the same coinnot be ordered to be refunded on the qround that the proceeding hns been subsequently withdrawn by the party. The inherent power to rerpit or refund the court-fee is confined only to fees which has been ilieqally or erroneously assessed or collected. 21) In 1+ie instant case, as already observed, the appellonts preferred this first appeal under Section 96 of the CPC and appended requisite court fee with the meiiiorandurn of appeal. TTie cppellants were heard on their application for stayin9 the execution of the itnpugned judgment and decree and stay order was possed in their fayour. Howeyer, when the respondent No.l/ plaintiff prayed for .dismissal of the appeal on the ground that the same is not maintainable in view of sub-section (3) of Section 6 of the Act of 1963, the appelloints have filed the above three aoolications for Dermission to withdraw the aDOeaI with libert^ to file civil reyision, refund of court fees and return of certified copy of the impugned judgment & decree. If the order of refund is passed in fayour of 1+ie appellants under the inherent powers, the same shdll amount to indirectly exempt the appellants from the obligation impflsed upon them by the Statute s • . towards payment of Court-fees. Therefore, in our considered opinion the jurisdiction of the Court in ordering refund of court fee einanates directly from the Court pees 'Act, 1870, if such powers haye not been conferred bylaw, it cannot be exercised except in rare circumstances such as where the court fee has been assessed or, collected ilteaallv or erroneously. ^f£3"SS'^f.. .^^"^^. '''"^.•\ ' / Sh.-ri-^. 'i ?i. S%BSM; i' I.' '.""'^! /^ ^ ^^ £/ 10 '— ^ 22) For the aforesaid reasons, opplication (I.A. No.5) for withdrawal of this appeal is allowed, the appiellonts are perrpitted to withdraw this ciDOeal with libertv to avail remedies available under the law includinq fi!in9 of ciyil revision against the impuaned judgment & decree and accord^ly, the appeal is dismissed as withdrawn. It is further directed that on oppellaaits' furnishing authenticated true copy of the impugned judgment and decree, the certified copyof the same annexed with the memo of aDDeal be returned to the aoDellant. However. the orover of the aoDellants made in I.A. No.6 for refund of court fee is rs jected. 23) Before partina with the matter we record our appreciation for sincere and yaluable assistance rendered by M.r. AAanindra Shriyastcva, Senior Adyocate, Mr. Sanjay 5 Aaarwal & Mr. Sanjay K Aaarwai, Advocates as Amicus Curiae. 24) No order as to costs. Sd/- Dhirendra Mishra Judge Sd/- DUip Raosaheb Deshmukh Judge Roshan/'- s.'