Refund of Court Fees – When and How much? (Part-II)

This part (second part) of the article deals with myriad grounds where Court Fees can be refunded. The first part of the article can be accessed here

Refund in cases of Return of Plaint

When a Plaintiff files a suit, he is mandated to file the suit along with the requisite court fee, as has been provided in the law. At the time of filing of the plaint, the pecuniary value of the suit is ascertained on the basis of relief claimed in the suit and on which the court fee is calculated and also the pecuniary jurisdiction of the Court is ascertained.

The provision for Return of Plaint is provided under Order 7 Rule 10 of CPC, but it nowhere mentions that while returning the plaint to be presented before proper forum, court fees has to be refunded. So we need to look at the precedents to understand the position of law on the subject.

Hon’ble Supreme Court recently in Dr (Col) Subhash Chandra Talwar vs T. Choithram and Sons & Ors.[i], held that court has to return entire court fee while returning the plaint, so that plaintiff can present it before the proper forum. To be precise when rejection order is passed under Order VII Rule 10 of the CPC, it is not an order on merit of the suit and therefore, the plaintiffs are entitled to the refund of Court fees so that they can pay the Court fees in the State where the suit would be filed afresh.

Delhi High Court in Chief Controlling Revenue Authority & Anr. v Fertilizer Corporation of India Ltd. & Ors.[ii], held that, when a party seeks return of a plaint in order to file it before a Court of competent jurisdiction, the party cannot be compelled to pay Court fees twice over. Unless there is a specific bar in the Court-Fees Act or any statutory rules lawfully framed against the use of court-fee stamps purchased by a citizen in one State from being used in another State in the Union of India, there is no legal justification for depriving a citizen from using those stamps in a State other than that of the purchase. The various States in this Union are not foreign countries.

In Prabhakar Bhat v. Vishwambhar Pandit[iii], a Full Bench of the Bombay High Court held that where after a trial has begun or even after it has concluded, it appears that the Court has no jurisdiction to hear the case, the plaint should be returned in order that it may be presented to the proper Court and no additional Court-fees is payable. It means the court fees will be returned along with the plaint.

Refund of Court Fees on the Appeal against Order of Return of Plaint

In Jawahar Singh Sobha Singh v The Union of India[iv], a Full Bench of the Punjab High Court had before it an application by a plaintiff whose plaint had been ordered by a subordinate Court to be returned for presentation to proper court. The plaintiff had preferred an appeal against the order to the High Court, but the appeal had been dismissed. He therefore applied for a refund of the court-fee paid on the appeal and it was held that as the court-fee had been paid in accordance with the provisions of the Court-fees Act and as the court-fee did not exceed the amount prescribed by law, the court will not accede to the request of the plaintiff to refund the court-fee to him.

Refund in cases of Rejection of Plaint or Memorandum of Appeal

If the requisite Court fee is not paid, then such plaint can be rejected in terms of Order 7 Rule 11 of the CPC (as one of the grounds of rejection of plaint is when the relief claimed is undervalued and so is the court fee). Only indigent persons (as mentioned in Order 33) are exempt from paying the Court fees. A bare reading of Order 7 Rule 11 shows that it doesn’t provide for return of court fee, when the plaint has been rejected by the Court.

But according to Section 61 of Rajasthan Court Fees Act, where a plaint is rejected under Order 7 Rule 11 or a Memorandum of Appeal is rejected under Order 41. Rules 3 or 11 of the CPC, 1908, the Court may, in its discretion, direct the refund to the plaintiff or the appellant of the fee either in whole or in part, paid on the plaint or memorandum of appeal which has been rejected. The literal interpretation of section says that it is in discretion of the court to refund the court fees and in case it decides to refund, then the amount of refund also lies with the discretion of court. Here in rejection of plaint, court fees refund can’t be claimed as a matter of right.

In Ramakant Patak v Murlidhar Pande[v], the plaint which was filed with deficit court-fee was rejected, and when plaintiff prayed for a refund of the court-fee which he had, his prayer was not allowed.

But it has to be noted that where a memorandum of appeal is rejected on the ground that it was not presented within the time allowed by the law of limitation (exceeding the time within which memorandum should have been presented before appellate court) only one-half of the fee shall be refunded. Here appellate court has to refund one half the fee and there is no discretion with the court.

Refund in case where the matter is Remanded

Section 62 of Rajasthan Court Fees Act provides that:

  • where a plaint or memorandum of appeal which has been rejected by the lower Court is ordered to be received, or
  • where a suit is remanded in appeal for a fresh decision by the lower Court,

The Court making the order or remanding the appeal may direct the refund to the appellant of the full amount of fee paid on the memorandum of appeal and. if the remand is on second appeal, also on the memorandum of appeal in the first appellate Court, and, if the remand is on an appeal from the judgment of single Judge of the High Court of Rajasthan under any law for the time being in force, also on the memorandum of second appeal and memorandum of appeal in the first appellate court. But it comes with a caveat that, no refund shall be ordered if the remand was caused by the fault of the party who would otherwise be entitled to a refund. Moreover if the order of remand does not cover the whole of the subject-matter of the suit, the refund shall not extend to more than so much fee as would have been originally payable on that part of the subject-matter in respect where of the suit has been remanded.

In Mohammadi Hussain v. Mt. Chandro[vi], Niyamat Ullah, J. had before him a second appeal against an order of a Subordinate Judge who had dismissed the appeal for want of prosecution. The court found that the appeal had been wrongly dismissed and remanded it for hearing on merits. However the court ordered the court-fee on the appeal to be refunded.

Refund of Excess Fee Paid

Sometimes it happens that party pays more than the prescribed court fee in the matter. Section 58 of Rajasthan Court Fees Act provides what happens in such situations.

  • In cases of grant of the probate or letters of administration of an estate, it is discovered that higher fee has been paid than was payable according to the true value of the estate, the executor or administrator, as the case may be, may apply for a refund to the Collector to whom a copy of the valuation of the estate was sent under section 50.
  • Sub Section 2 provides for the procedure of refund at the part of collector, when he is satisfied that amended valuation is correct.
  • In case Collector does not grant a refund, the executor or administrator, as the case may be, may apply to the Board of Revenue for an order of refund.

So the crux of the section is that if the litigant is made to pay fees 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. In 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 the Government.

Refund on Ground of Mistake

Section 63 of Rajasthan Court Fees Act provides two situations where court fees can be refunded:

  • Where a party prefers an application for a review of judgment and it is admitted on the ground of some mistake or error apparent on the face of the record of judgment, and on rehearing, the Court reverses or modifies its former decision on that ground, it shall direct the refund to the applicant of so much of the fee paid on the application as exceeds the fee payable on any other application to such Court under Article 11(g) and (h) of Schedule II. (Specific situation of Review of Judgment and its reversal on the ground of Mistake apparent on the face of record)
  • Any fee paid by mistake or inadvertence shall be ordered to be refunded to the person paying the same. (Clause covering in general situation)

Reduction, Remitting or Exemption of Fees

Section 65 of Rajasthan Court Fees Act gives the power to State Government that it may by notification in the official Gazette, reduce or remit, in whole or in any part of the territory of the State, all or any of the fees chargeable under this Act, and may in like manner, cancel or vary such notification. Moreover according to Section 65A it can exempt, in public interest, any class of persons from all or any of the fee chargeable for any category of suits under the Court Fees Act.

Where the Relief Claimed Can’t be granted under the Law or the Plaintiff Deletes his Relief and Alters the Frame of the suit

In Ramkrishnayya v Seshamma[vii], a suit had originally been framed in a particular manner but with the consent of the court some relief was given up and the frame of the suit altered. The plaintiff claimed a refund of the court-fee in respect of the relief originally claimed and given up. The prayer was disallowed.

In Om Prakash Gupta v State of Uttar Pradesh,[viii] the plaintiff who was a civil servant, had claimed several reliefs including arrears of salary. It was found that he had no right to sue for the arrears. He therefore gave up that relief and prayed for a refund of the court-fee paid in respect of that relief. The prayer was not allowed and it was observed:

“If a person has been compelled to pay more court-fee than he was required to pay under the law, it may be said that he was compelled by the court and the court’s inherent powers may be invoked for its refund. But where the court-fee is paid voluntarily, without compulsion and there is no mistake in computation, or any over payment, the party who has asked for a relief which he was not bound under the law to ask and has paid court-fee thereon, cannot invoke the inherent power of the Court to refund the court-fee when he later on gets that relief deleted”.

If the Proceedings Subsequently becomes Unnecessary to Carry

The view that the court-fee which has been properly paid cannot be refunded simply because subsequently it becomes unnecessary to continue the proceedings has been taken in a number of cases. In Jagdish Chaudhry v Radha Dube[ix], an appeal was filed properly stamped but was later dismissed as not maintainable. The refund of court-fee was claimed but was not allowed.

Where the suit is Not Maintainable

In Indu Bhushan v Secy. of State[x], court-fee had been paid in respect of a plaint but it was subsequently found that the suit was not maintainable. The plaintiff applied for a refund of a court-fee but the prayer was refused. It was laid down:

“Where a litigant has paid fees which he was bound to pay under the law for his plaint or memorandum of appeal, the court by ordering refund under the inherent power cannot indirectly exempt him from the obligation imposed upon him by the statute and thereby nullify the provisions of Section 6Court-Fees Act“.

[i] SLP No.18102/2013

[ii] 1966 SCC OnLine Del 1

[iii] ILR 8 Bom 313

[iv] AIR 1958 Punj 38 (R)

[v] AIR 1937 All 505

[vi] AIR 1937 All 284

[vii] AIR 1935 Mad 346

[viii] AIR 1955 SC 600

[ix] AIR 1928 Pat 35

[x] AIR 1935 Cal 707


ABOUT THE AUTHOR

Harshit Sharma

Harshit is a Civil Judge-cum-JMFC at Rajasthan Judicial Services, and a doctoral candidate (Ph.D.) at NLU Jodhpur. He can be reached at harshitsharmanluj@gmail.com.

One response to “Refund of Court Fees – When and How much? (Part-II)”

  1. […] on which parties claim refund of court fees paid (The first two parts can be accessed here and here). The main highlight of this part is the answer to the issue of whether court fees can be refunded […]

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