The last part of the tri-article series deals with the remaining grounds 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 under the Inherent Powers of the Civil Court. Let’s start.
Time Barred Appeals
In Sidheswar Chandra v Satya Kishore[i], a memorandum of appeal had been filed beyond time and an application was made under Section 5 of the Limitation Act for condoning the delay. The application was allowed on certain conditions which was not fulfilled. The appeal was therefore dismissed as time barred. An application was made for refund of court-fee but it was rejected.
In Mohammad Azim Khan v. Saadat Ali-khan[ii], the appeal was filed beyond time and the Court refused to condone the delay under Section 5 of the Limitation Act. The appellant applied for a refund of the Court-fee but the prayer was refused.
In Ranjan Lal v. Shanker Lal[iii], an appeal had been registered and admitted for hearing. It was however dismissed on the question of limitation. The appellant applied for refund of court-fee but it was held that the application was not tenable.
Case Compromised out of court at Appellate Stage
In Karfule Ltd. v A. D. Varghese[iv], court-fee was paid in respect of an appeal which was later compromised out of Court and was consequently not pressed. The appellant applied for a refund of court-fee but it was held that the court-fee could not be refunded.
Transfer of Suit from Lower Court to High Court
In Tarachand Ghanshyam Das v. State of West Bengal[v], a suit for the enforcement of a charge was filed in the subordinate Court. It was valued at 15 lacs and an ad valorem duty of Rs.10,000/- which was payable on the plaint was duly paid. The defendant appeared and applied for a transfer of the suit to the High Court under its extra-ordinary Original Civil Jurisdiction. Had the suit been filed in the High Court initially the court-fee payable would have been Rs. 2280 only. The defendant’s application for transfer was allowed and the suit was transferred to the Original Side of the High Court. The plaintiff then applied for a refund of the balance of the court-fee. It was held that he was not entitled to a refund.
Refund of Court Fees paid on Appeal from Final Decree when Earlier Appeal against Preliminary Decree succeeded
There are certain cases in which refund was allowed even though the amount in question had not been paid by mistake or under an erroneous order.
In Swami Dayal v Mohammad Sher Khan[vi], a preliminary decree had been passed and an appeal was preferred against it. During the pendency of the appeal a final decree was passed. An appeal, was preferred against that decree also. Subsequently the preliminary decree was set aside in appeal and the appellant wanted the court-fee paid in respect of the appeal against the final decree to be refunded. Refund was allowed on the ground that the result of the appeal in the preliminary decree would have governed the final decree as well, and it was, therefore, not necessary to file an appeal against the final decree. But there can be an another version to the approach taken by the court that when the appellant considered it necessary to file an appeal against the final decree and actually filed it, the question whether the appeal was necessary or not, had really no bearing on the appellant’s liability to pay the court-fee on the appeal. If the appellant had deliberately chosen to file the appeal and had paid the prescribed court-fee he could not subsequently get it refunded by pleading that he had filed the appeal unnecessarily.
Situation where appeal converted into revision
In Jan Mohammad v. Amolak Ram[vii], an appeal had been filed with proper court-fee but subsequently it was found that the appeal did not lie. At the instance of the appellant it was converted into a revision. The revision was accepted and Agha Hyder, J, allowed the court-fee paid on the appeal to be refunded after deducting the amount payable on the application in revision. He did not give any reasons in support of his order but observed that the course he was adopting had been agreed by the parties.
Whether Court Fees can be Refunded under Inherent Powers
It is a power, which is necessary to preserve the Court’s existence and to fully protect it in the orderly administration of its business. Inherent power is from its very nature essentially a protective power necessary for the existence of the Court and its due functioning. Its scope cannot be extended beyond its legitimate and circumscribed sphere. The inherent powers defy enumeration. They include powers necessary for the ordinary and efficient exercise of its jurisdiction; essential for its functioning, and imperative for the preservation of its existence.
These powers were not conferred by Legislation but they resided in the Court for its preservation, for the maintenance of its dignity, for securing obedience to its process and for protecting its officers engaged in executing its orders. But this inherent power cannot be stretched to cover a wider field. In the disguise of exercising their inherent powers Courts cannot proceed to arrogate the functions of Legislature.
A question that arises is whether Courts have any inherent or implied powers, independently of the statute, to pay back a court-fee which has been correctly and lawfully assessed and collected.
In Discount Bank of India v A. N. Misra[viii], it was held that the power of a Court to order a refund of Court-fees is limited only to three cases, namely:
- When the refund is authorised by the Court-fees Act itself,
- When excess Court-fee was paid as the result of a mistake and
- When the excess payment has been made as the result of a mistaken demand by the Court itself.
In Jawahar Singh Sobha Singh vs Union Of India[ix], it was settled by the Punjab and Haryana High Court that the power of a Court to remit or refund court-fee is confined only to fees which have been illegally or erroneously assessed or collected, and does not extend to fees which have been paid or collected in accordance with the provisions of the Court-fees Act.
Allahabad High Court in Munna Lal and Anr. vs Abir Chand[x] had to deal with an issue, “Whether High Court can in the exercise of its inherent powers order refund of court-fee paid in respect of an appeal which has been withdrawn before admission, on account of having become infructuous?”
Now after reading the previous parts of this article series it is very much clear that Court-fee is required to be paid under the provisions of the Court-Fees Act which clearly provide that unless the necessary court-fee has been paid no document of the kind chargeable with court-fee shall be filed, exhibited or recorded in any court of justice. No document in respect of which court fee should be paid but has not been paid can therefore be of any validity and no court can act upon it.
There are provisions in the Court-fees Act under which a refund of court-fee can be claimed as already been discussed in this part and previous ones. So if a party seeks to invoke the inherent powers of the Court and urge that in the exercise of that power the Court should allow refund of the court-fee which they paid because the appeal had to be withdrawn in circumstances beyond their control at a very early stage before it was even admitted by the Court. In this case the appellants paid the court-fee at the time when they filed their appeal because they knew that the appeal would not be entertained or acted upon unless the court-fee was paid. The amount which they paid was that prescribed by the Court Fees Act. They deliberately and voluntarily paid the same. So if the amount was paid properly and intentionally as the appeal would not have been entertained if it had not been paid. There is therefore no question of its being ordered to be refunded either in the exercise of the inherent powers of the Court or otherwise.
The Madras in In re Kappini Gowder[xi], held where an appeal is withdrawn the appellant is not entitled to apply for the refund of court-fee paid on the memorandum of appeal.
In the Chandaji Khubaji and Co., Guntur v. State of Andhra Pradesh[xii], it was laid down:
“The court has no power to order refund of court-fee in a case where the memorandum of appeal or a revision has been properly presented to the Court and it can be disposed of only by a judicial order, either allowing it or dismissing it, either on merits or because it is not presented and is withdrawn. In such a case, an order for refund of court-fee would really mean dispensing with the payment of court-fee on the appeal or revision preferred”.
If therefore the proper court-fee has been paid as required by law there can be no question of its being refunded simply because for some reason or the other it becomes unnecessary to consider the proceedings on merits. No doubt the court has an inherent power to do justice and to prevent an abuse of the process of the court. It cannot, however, in the exercise of this power circumvent the provision of law and either relieve 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.
Earlier Refund was allowed in cases ex debi-to justitiae on the ground that an amount had been paid which need not have been paid and which the person concerned was not bound in law to pay. The Government therefore has no justification for retaining the amount and it is bound in equity to give it back. The Court could not allow the liability of the litigant to be increased. Nor could it permit the State to benefit by any mistake of the litigant or any wrong order of the Court. Earlier before the enactment of State wise Court Fees Act there were cases that did not fall within the specific provision relating to refund mentioned in the Central Court-fees Act and the Court used to had the recourse to its inherent jurisdiction to order refund in those cases. But after enactment of State wise Court Fees Act, the grounds of refund are properly demarcated and Courts can’t order refund by using their inherent powers.
The maxims expressum facit cessare tacitum (what is expressed, makes what is silent to cease) and expressio unius est exclusio alterius (the express mention of one thing implies the exclusion of another) are principles of logic & common sense which are applicable both in the construction of written instruments as well as in the interpretation of statutes. The Courts presume that when a statute has expressly dealt with some situations, conditions or requirements all that it had intended to convey, it has communicated in express language and there is no further power given, or duty cast, to add to it. In other words where a statute enumerates, the subjects or things on which it is to operate, or the persons affected, or forbids certain things, it is to be construed as excluding from its purview, what it has failed to specify.
Every positive direction mentioned in an Act of Legislature carries an implication against everything contrary to it, the specification of one particular subject excludes all others and affirmation of one power implies the denial of the powers not mentioned. Cassus omissus is not to be created or supplied, and a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made.[xiii]
[i] 41 Cal WN 1184
[ii] AIR 1946 Oudh 9
[iii] AIR 1953 Nag 330
[iv] AIR 1953 Bom 73
[v] AIR 1955 Cal 258
[vi] AIR 1925 Oudh 39
[vii] AIR 1936 Lab 30
[viii] AIR 1955 Punj 165
[ix] AIR 1958 PH 38
[x] AIR 1958 All 766
[xi] AIR 1933 Mad 67
[xii] AIR 1957 Andh Pra 255
[xiii] Crawford v. Spooner, (1846) 6 Moo P. C. 1 (Z6), Gwynne v. Burnell, (1840) 7 Cl. and F. 572 (Z7)
ABOUT THE AUTHOR
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 email@example.com.
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