PREMLAL Vs. BASANTI BAI KESHARWANI AND STATE OF CHHATTISGARH
HIGH COURT OF CHHATTISGARH
BASANTI BAI KESHARWANI AND STATE OF CHHATTISGARH
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Dhirendra Mishra, J. -
(1.)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 impugned judgment and decree; I.A. No. 6, application for refund of court-fee affixed in the first appeal and I.A. No. 7, application for permission to return certified copy of the impugned judgment and decree, are being disposed of. This first appeal is directed against the judgment and decree dated 11.5.2007 passed in Civil Suit No. 38-A/2007 whereby the learned 3rd Additional District Judge, Bilaspur has decreed the suit of the plaintiff/respondent No. 1 herein with cost and directed the defendants/appellants herein to restore vacant possession of the suit land/ house & hotel to the plaintiff within a period of one month failing which the plaintiff would be entitled for damages @ Rs. 2,000/- per month. The respondent No. 1/plaintiff filed the above suit under Section 6 of the Specific Relief Act, 1963 (for short 'Act of 1963') for restoration of possession with specific averments that she was dispossessed from the suit property without following due process of law on 14.5.1997 and the trial court by impugned judgment and decree, decreed the suit of the plaintiff, as described above. The appellants have preferred this regular first appeal against 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 Rs. 89,800/- in the memo of appeal. This Court vide order dated 30.8.2007 stayed the effect and operation of the impugned judgment & decree on appellants' depositing money part of the decree with certain conditions. The application for vacating stay by the respondent No. 1/plaintiff was also rejected on 5.2.2008 and the matter was fixed for final hearing. Thereafter, respondent No. 1 vide her application dated 10.3.2008 (I.A. No. 2) prayed for dismissal of the appeal itself on the ground that as per provisions of Section 6(3) of the Act of 1963 no appeal lies against the order or decree passed in a suit instituted under Section 6 of the Act of 1963. Confronted with the above preliminary objection, the appellants by the aforesaid applications have prayed for withdrawal of the appeal with liberty to file civil revision and also prayed for refund of court-fee affixed by the appellants in the memo of appeal.
(2.)THE short question for deciding the above applications is whether the appellants can be permitted to withdraw first appeal with liberty to file civil revision against the impugned judgment and decree and whether while permitting the appellants to withdraw the appeal, the court-fee affixed by them along with memo of appeal can also be refunded. So far as the question of permission to withdraw the appeal with liberty to file civil revision is concerned, taking into consideration the provisions of Section 6(3) of the Act of 1963, the instant appeal is not maintainable and in these circumstances, there is no impediment in permitting the appellants to withdraw this appeal with liberty to avail remedies available under the law including filing of civil revision against the impugned judgment and decree in accordance with law. The only question that remains to be decided is whether the Appellate Court is empowered to grant to the appellants a certificate authorizing them to receive back the full amount of court-fee paid by them on the memorandum of appeal. Considering the different views taken by the various High Courts in the matter, the Bar was requested to address on this legal issue and accordingly, Mr. Manindra Shrivastava, Senior Advocate, Mr. Sanjay S Agarwal & Mr. Sanjay K Agarwal, Advocates addressed the Court at length and also submitted written submissions.
Mr. Ratnesh Agarwal and Mr. Wankhede, Advocates for the appellants vehemently contended that the appellants instead of preferring civil revision against the impugned judgment and decree inadvertently filed the instant first appeal, 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 memo of appeal. Though the present case is not covered by Section 13, 14 and 15 of the Court Fees Act, however, the Court can invoke its inherent powers under Section 151 of the CPC for refunding the court fee appended with the memo of appeal, which has been filed inadvertently by the appellants. Mr. Manindra Shrivastava, Senior Advocate & Mr. Sanjay S Agarwal, Advocate traversing various judgments delivered by the different High Court on this legal issue submitting following propositions;
a) Even in cases not covered by Section 13, 14 and 15 of the Court Fees Act, the Court can invoke its inherent power under Section 151 of the Code of Civil Procedure to refund the Court Fee paid in excess either by mistake, inadvertence or oversight. However, the inherent power of a Court to 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 in accordance with the provisions of the Courts Fees Act. b) Where the appeal is withdrawn/ not pressed as having been rendered infructuous, appellant is not entitled to refund of Court Fees paid on the memorandum of appeal. c) Where on appeal having been filed and jurisdiction of the Appellate Court having been invoked and further Appellate Court having entertained the appeal and/or passed any order/interim order coming to the aid of the appellant, refund of Court Fee is not permissible merely because at the stage of argument confronted with objection regarding maintainability of the appeal either it is withdrawn or a prayer for conversion of appeal into revision is made as the Court Fee paid on it served its purpose. However, in exceptional case where a memorandum of appeal was filed, numbered and registered but was not pressed for arguments at all the Court did not entertain the appeal nor passed any order and only prayer was for refund of Court Fees, refund of Court Fees may be granted on equitable consideration and for doing proper justice.
(3.)MR. Sanjay K. Agarwal, Advocate in his oral submissions as also in the written submissions contended that refund of court-fees may be ordered only under the contingencies enumerated in Section 13, 14 and 15 of the Court Fees Act and none of the contingences enumerated in the above Sections exists in the present case. It is settled law that taxing statute has to be construed strictly. Where the court-fee is paid as per provisions of the Court Fees Act, the same cannot be directed to be refunded under inherent powers of the Court as the court fee, which has been illegally and erroneously assessed or collected can only be ordered to be refunded. It was further submitted that where the appellant withdraws his appeal, the appellate court in the exercise of inherent powers cannot order refund of court fees. Similar arguments were also advanced by Mr. N.K. Agarwal, Deputy Advocate General for respondent No. 2-State.
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